State v. Martinez

2013 UT App 39
_________________________________________________________

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Plaintiff and Appellee,

v.

JULIO I. MARTINEZ,

Defendant and Appellant.

Memorandum Decision
No. 20110015‐CA
Filed February 22, 2013

Third District, Salt Lake Department
The Honorable Deno G. Himonas
No. 091903723

Samuel P. Newton, Attorney for Appellant
John E. Swallow and Christine F. Soltis, Attorneys for Appellee

JUDGE GREGORY K. ORME authored this Memorandum Decision,
in which JUDGE J. FREDERIC VOROS JR. concurred.
JUDGE WILLIAM A. THORNE JR. dissented, with opinion.

ORME, Judge:

¶1 Defendant argues that his convictions should be vacated and
a new trial ordered because his trial attorneys labored under a
conflict of interest that adversely affected their performance in
representing him. Defendant also contends that the trial court
improperly denied his motions to appoint new counsel and failed
to adequately inquire into the nature of the conflict between
Defendant and his counsel. We affirm.
 State v. Martinez

¶2 Defense counsel’s efforts on Defendant’s behalf appear to
have been quite thorough. In the months leading up to trial,
Defendant’s attorneys requested discovery, a bail hearing, and
Defendant’s release from incarceration so he could attend a funeral;
represented Defendant at a preliminary hearing and his
arraignment; attended a scheduling conference; moved for the
discovery of and subpoenaed the victim’s Division of Child and
Family Services (DCFS) records; provided notice of self‐defense, as
required by statute; and moved to continue the trial to allow for
additional defense investigation.

¶3 Despite defense counsel’s efforts, two months before trial
Defendant filed a pro se motion requesting new counsel. Defendant
claimed that his attorneys were not communicating with him and
that they had failed to obtain “medical” records, apparently
referring to the DCFS records. The trial court held a hearing to
discuss Defendant’s motion, and the court questioned Defendant
about his concerns. Defendant complained that his attorneys had
not moved to suppress a statement that his father had made to
police. Counsel replied that they had reviewed the statement but
believed that there was no good faith basis on which to argue that
the statement should be suppressed. They also noted that the
prosecution did not intend to introduce the statement at trial. The
trial court determined that there was no reason to suppress the
statement and, consequently, found that there was no good cause
to appoint new counsel on this basis.

¶4 Regarding Defendant’s claim that his attorneys’
communication with him was inadequate, defense counsel
explained that they maintained records of all jail visits and had
been visiting Defendant more often than their other jailed
clients—about three out of four weeks per month, for fifteen
minutes to an hour per visit. As to Defendant’s complaint that
defense counsel had not secured the victim’s DCFS records,
counsel explained that efforts to secure the records were ongoing
and being litigated. The trial court found defense counsel’s
explanations satisfactory. The court confirmed that Defendant had

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 State v. Martinez

no other concerns or complaints. The court informed Defendant
that if he had concerns in the future he should come forward with
them, but it concluded that there was “absolutely no basis for
replacing counsel” at that time.

¶5 Defense counsel’s continued diligence on behalf of
Defendant is demonstrated by their pretrial motion to sever count
two, robbery, from the other counts. Although the motion was
denied, the court directed the State not to elicit evidence at trial
about either the underlying theft or Defendant’s gang affiliations.
The court also granted a defense motion forbidding any reference
to the victim as a “victim.” Defense counsel asked the court to
prohibit an officer from testifying at trial that the victim was in
condition “delta”—one step short of death—when the officer
arrived on the scene. The trial court denied that motion.

¶6 Defense counsel’s diligent efforts on Defendant’s behalf
continued at trial. The introduction of a taped telephone call from
Defendant, while in jail, to the victim was delayed until the defense
had an opportunity to review it. Although overruled by the court,
an objection to a jury instruction was interposed by defense
counsel. After the State’s direct examination of its second witness,
a convenience store clerk, defense counsel informed the court,
outside the presence of the jury, that Defendant wanted to know
whether a plea offer was still “on the table.” Upon discussing the
available offer with counsel, Defendant rejected it, and the trial
continued.

¶7 Defense counsel then cross‐examined the clerk, who testified
that he had seen Defendant in the store on other occasions but did
not know his name and had not previously conversed with him. As
one of his attorneys questioned the clerk, Defendant passed her a
note. Counsel then asked the clerk if he had testified at Defendant’s
preliminary hearing that he and Defendant had engaged in
“dozens” of conversations in the past. The prosecution objected
that this was a misstatement of the prior testimony. When defense
counsel asked to withdraw the question, the court refused and

20110015‐CA 3 2013 UT App 39
 State v. Martinez

directed counsel to read the relevant portion of the preliminary
hearing transcript aloud. The thrust of the testimony was that the
clerk had only seen or waited on Defendant on several prior
occasions but had not otherwise interacted with him. The court
then admonished defense counsel for improper impeachment of
the witness.

¶8 After the jury was excused that day, the court scolded
defense counsel again about the improper impeachment effort.
Defendant injected himself into the conversation and began to
argue with the court, insisting that the store clerk’s earlier
testimony differed from his trial testimony, contending, “It says it
right here on the preliminary transcripts.” The court cut Defendant
off, telling him that his attorneys could explain why the
impeachment was improper. Defendant replied, “Well, I think I’m
going to file an ineffective assistance of counsel on me then because
you’re not representing—you are not representing—you are not
going right through the—.” The court then asked both defense
attorneys if the store clerk had previously testified to having
dozens of conversations with Defendant. Both replied that he had
not.

¶9 That evening, defense counsel contacted the presiding judge
of the district to discuss “an issue of concern.” They explained that
they felt “a sense of intimidation” and “couldn’t really articulate
what it was, but that there was a sense of being compromised in
the ability to exercise a judgment they normally exercise or to make
a decision they would normally make.” The defense attorney who
had undertaken the improper impeachment after being prompted
by Defendant’s note explained that the sense of intimidation had
caused her to do “something . . . that day . . . that was against an
old judge that she normally would not have done.” The presiding
judge telephoned the trial judge to inform him of the conversation.

¶10 The next morning, with all counsel present, the court
disclosed in chambers that defense counsel had engaged in an ex
parte communication with the presiding judge. Defense counsel

20110015‐CA 4 2013 UT App 39
 State v. Martinez

reiterated that “there’s just something about this particular
individual that raises concerns to us.” The court stated:

It’s your duty adequately and zealously to represent
him. And it sounds to me, you correct me if I am
wrong, it’s not that you are foregoing legitimate
cross‐examination, . . . it’s that perhaps his
intimidation has led you to do things that would
otherwise be against your professional judgment.

Counsel replied, “That’s accurate, your Honor.” The court, in
reference to the prior improper impeachment, said:

My sense right now . . . it’s more of . . . intimidation,
but that’s not the point. And if that’s the case, . . . my
initial reaction is, forgive me saying this a little bit,
but it’s—you’ve got a duty to your client and you’re
also an officer of the Court. And at some point you
just call, excuse my French, bullshit, and you don’t
do things like last night. Right?

The court then called a recess to allow the attorneys to talk. After
the break, the State indicated its belief that defense counsel would
represent Defendant “with the integrity of court officers and do
their job like they should.” Defense counsel agreed that they were
ready to continue with the trial.

¶11 Back in the court room, but without the jury present, the
court told Defendant what had been discussed in chambers. The
court informed Defendant that his reaction to the court’s ruling
regarding the previous day’s impeachment had been improper.
Defendant initially agreed, stating that perhaps his counsel had
misunderstood the questions that he had wanted asked, but he
later began to argue, insisting that the convenience store clerk had
testified differently at trial than he had previously.

20110015‐CA 5 2013 UT App 39
 State v. Martinez

¶12 The court also addressed the intimidation concerns,
explaining:

I’ve been informed by your counsel that they feel
intimidated by you, whether rightfully or
wrongfully, . . . and they have disclosed that
intimidation and that has perhaps caused them to do
things that they would not otherwise do as officers of
the Court. . . . We’re going to go forward with this
trial. Okay?

¶13 Defendant then stated, “Well, I’m already going to fill out a
motion to—file for a new counsel based on integrity of counsel
. . . .” Defendant summarized the basis for his renewed motion in
these terms:

My lawyers, they feel intimidated by me, so,
therefore, we have a conflict of interest. So therefore,
they feel they are afraid of me or whatever their
complaints would be. So, therefore, there’s a conflict
between me and the lawyers. So, therefore, I don’t
see how we can, you know, communicate without
me feeling that there’s a fear between me and them.

In response, both defense attorneys again indicated that they could
“vigorously represent” Defendant. The court told Defendant, “I
don’t think that you get to recreate the situation in which you get
new counsel by doing that,” i.e., by intimidating appointed
counsel.

¶14 Defendant then argued again why he felt that replacement
counsel was necessary. He first claimed that his lawyers had failed
to suppress his father’s statement—which was not admitted at
trial—but that claim had earlier been considered and rejected by
the court. Defendant also claimed that his attorneys had not
informed him that a severance motion had been denied and
insisted he was not present when the motion was argued and

20110015‐CA 6 2013 UT App 39
 State v. Martinez

decided. Both attorneys responded that Defendant had been
present, whereupon the court told Defendant, “Stop pulling my leg
then[.]” Defendant admitted he had forgotten that he had been
present and asked to withdraw his motion for substitution of
counsel, stating that he would “agree to go forward with this
counsel.” The court responded, “I’m not giving you a choice. Your
motion is denied.” As the court attempted to go on, Defendant
accused the court of “violating [his] constitutional rights.”
Defendant then “stare[d] down” the judge. The judge told
Defendant, “I’ve tried . . . a couple of hundred jury cases, and I’m
telling you that you are being as difficult a defendant as any I have
encountered[.]”

¶15 As the trial continued, defense counsel actively objected to
evidence and cross‐examined witnesses. Defense counsel twice
moved for a mistrial after the bailiff overheard two jurors
discussing why additional deputies were in the courtroom and
heard one juror comment that it was so Defendant could be
detained if convicted. Defense counsel opposed any questioning of
the individual jurors or the use of a curative jury instruction out of
concern for calling more attention to the matter. The court denied
the motions for mistrial and reaffirmed the denial when the motion
was again renewed.1 The defense moved unsuccessfully for a
directed verdict on the attempted murder charge, claiming that
there was insufficient evidence to convict Defendant on the
“intentional” or “knowing” element of the crime.

¶16 Outside the presence of the jury, defense counsel told the
court that they had explained to Defendant that he had a right to
testify and that he had opted not to do so. The court questioned
Defendant to ensure that his choice was informed, that he had had

1
The juror who made the comment was later removed
from the jury at defense counsel’s request and replaced with an
alternate.

20110015‐CA 7 2013 UT App 39
 State v. Martinez

adequate time to consult with his counsel, and that he understood
the consequences of not testifying.
¶17 In closing argument, defense counsel argued that Defendant
truly lacked the intent to kill the victim despite his stated intention
to do so. Counsel argued that the attempted murder count was the
result of overzealous charging by the State and urged the jury to
instead find Defendant guilty of a lesser included offense.

¶18 Defense counsel admitted that Defendant was guilty of
domestic violence in the presence of children but argued that the
violence was perpetrated in the course of an assault rather than an
attempted murder. Defense counsel also admitted that Defendant
was guilty of interference with a lawful arrest but forcefully argued
that he should be acquitted of robbery due to the store clerk’s lack
of credibility. The jury acquitted Defendant of the charge of
attempted murder, finding him guilty instead of the lesser included
offense of aggravated assault, but convicted him of the remaining
charges.

¶19 The day after trial, in a telephone conference with the
prosecution and defense counsel, the trial judge explained that he
had learned from a credible source that one of Defendant’s
attorneys “was, not last night but the night before, followed home
and had to alert the authorities.” The attorney confirmed that she
had called the police after being followed home. The court stated
that it felt obligated to disclose the matter.

¶20 Two weeks after trial but prior to sentencing, Defendant’s
attorneys withdrew and new counsel was appointed to represent
Defendant. New counsel moved to recuse the trial judge from the
sentencing phase, but the motion was denied. New counsel moved
for a new trial, claiming that both of Defendant’s trial attorneys
were ineffective. New counsel later rescinded that motion. New
counsel withdrew after sentencing, and Defendant’s appellate
counsel was appointed.

20110015‐CA 8 2013 UT App 39
 State v. Martinez

¶21 On appeal, Defendant asserts that his convictions should be
vacated and a new trial ordered because his trial attorneys felt
intimidated by him and, therefore, a conflict of interest existed.
Whether an actual conflict existed is a mixed question of fact and
law. See State v. Lovell, 1999 UT 40, ¶ 22, 984 P.2d 382. “First, we
review the district court’s factual conclusions under a clear error
standard. Second, we review the district court’s legal interpretation
of particular ethical norms under a de novo standard when that
interpretation implicates important constitutional rights.” State v.
Balfour, 2008 UT App 410, ¶ 11, 198 P.3d 471 (citation and internal
quotation marks omitted).

¶22 We first consider whether an actual conflict existed between
Defendant and his trial counsel. Absent proof that an actual conflict
existed, we review a trial court’s refusal to appoint new counsel
under an abuse of discretion standard, see State v. Scales, 946 P.2d
377, 381 (Utah Ct. App. 1997), and Defendant argues that, at a
minimum, the trial court erred in denying his motions for
substitution of counsel.

¶23 An indigent defendant has a right to have counsel appointed
to represent him at public expense, Gideon v. Wainwright, 372 U.S.
335, 344–45 (1963), and the Sixth Amendment guarantees
defendants the right to effective assistance from such counsel, see
Strickland v. Washington, 466 U.S. 668, 688–89 (1984). This means
that defense counsel must reasonably assist the defendant in
receiving a fair trial. Id.

¶24 “The accused is entitled to the assistance of a competent
member of the Bar, who demonstrates a willingness to identify
himself with the interests of the defendant and who will assert such
defenses as are available to him under the law and consistent with
the ethics of the profession.” State v. Classon, 935 P.2d 524, 533–34
(Utah Ct. App. 1997) (citation and internal quotation marks
omitted). However, “the appropriate inquiry focuses on the
adversarial process, not on the accused’s relationship with his
lawyer as such. If counsel is a reasonably effective advocate, he

20110015‐CA 9 2013 UT App 39
 State v. Martinez

meets constitutional standards irrespective of his client’s evaluation
of his performance.” United States v. Cronic, 466 U.S. 648, 657 n.21
(1984). The right to counsel is not subject to the defendant’s
unfettered preference. “Trial courts are generally allowed
considerable discretion in granting or denying motions to
disqualify counsel, and such decisions will only be overturned
when that discretion is exceeded.” Balfour, 2008 UT App 410, ¶ 11.

¶25 Because Defendant’s attorneys were “intimidated” by him,
Defendant claims that they acted under a conflict of interest,
particularly with regard to the duty of loyalty. Quoting Strickland,
Defendant claims that “this ‘duty of loyalty’ has been described as
‘perhaps the most basic of counsel’s duties.’” 466 U.S. at 692.
“[E]ven when no theory of defense is available, if the decision to
stand trial has been made, counsel must hold the prosecution to its
heavy burden of proof beyond a reasonable doubt.” Cronic, 466
U.S. at 656 n.19. “Of course, the Sixth Amendment does not require
that counsel do what is impossible or unethical. If there is no bona
fide defense to the charge, counsel cannot create one and may
disserve the interests of his client by attempting a useless charade.”
Id.

¶26 Defendant claims that the “animosity between Defendant
and his trial counsel resulted in the deterioration of the attorney‐
client relationship to the point that it affected Defendant’s right to
effective assistance of counsel.” We disagree. From an objective
perspective, defense counsel continued to zealously represent
Defendant, despite Defendant’s complaints and apparent efforts at
intimidation. Although for a very brief time defense counsel
doubted their ongoing ability to represent Defendant, defense
counsel was always commendably cognizant of their obligation to
“adequately and zealously represent [Defendant] in trial” “with the
integrity of court officers and do their job like they should.”2

2
We also note that the improper impeachment of the
(continued...)

20110015‐CA 10 2013 UT App 39
 State v. Martinez

¶27 Defendant claims on appeal that defense counsel’s
agreement to represent Defendant after feeling intimidated by him
“clearly would affect not only a defendant’s ability to communicate
with his counsel, but would also affect counsel’s willingness and
desire to act with the duty of loyalty.” It is not disputed that
Defendant was a difficult and intimidating client. As noted, the
trial court even went so far as to tell Defendant, “I’ve tried . . . a
couple of hundred jury cases, and I’m telling you that you are
being as difficult a defendant as any I have encountered[.]”
However, once counsel voiced their concerns and determined that
they could continue to zealously represent their client, counsel did
so until the conclusion of trial.3

2
(...continued)
convenience store clerk on the first day of trial does not suggest
a conflict of interest. The attempted impeachment was not ad‐
verse to Defendant’s interests but was at his specific request. See
State v. Webb, 790 P.2d 65, 75 (Utah Ct. App. 1990) (“In order to
show an actual conflict of interest existed, a defendant must
point to specific instances in the record to suggest an actual
conflict or impairment of his or her interests.”) (citations omit‐
ted).
3
Defendant additionally claims that counsel’s disclosure
of the intimidation may have been a violation of the Utah Rules
of Professional Conduct. See Utah R. Prof’l Conduct 1.6 (relating
to permissible attorney disclosures of information related to the
client); id. R. 1.7 (stating that a lawyer “shall not represent a
client if the representation of that client may be materially lim‐
ited . . . by the lawyer’s own interest”). However, defense coun‐
sel, mindful of their obligations to their client, limited their
disclosures to the court and, indeed, directed them initially to
the presiding judge. One of the attorneys acknowledged the
need to “continue to zealously represent our defendant. And
because of that I can’t disclose certain information.” The court
(continued...)

20110015‐CA 11 2013 UT App 39
 State v. Martinez

¶28 Defendant claims that his counsel’s closing argument, in
which counsel conceded Defendant’s guilt to some charges,
indicated a clear breakdown in the attorney‐client relationship. We
disagree. Attempted murder was by far the most serious charge
Defendant faced at trial. Counsel may very well have made the
tactical decision to admit guilt to the lesser offenses, on which the
State had presented extensive evidence, and instead focus their
efforts on seeking acquittal on the most serious charge. “[D]efense
tactics, whereby counsel admits guilt on a lesser charge in the hope
that the jury would then be more receptive to the claim that the
defendant was innocent of the far more serious offense and acquit
him thereof, is a perfectly acceptable strategy which should not be
second guessed by the courts.” People v. Allen, 727 N.Y.S.2d 331,
331–32 (App. Div. 2001) (mem.) (alterations, citations, and internal
quotation marks omitted).

¶29 Defendant has not demonstrated how counsel failed to
represent his best interests at trial.4 Therefore, we are not
persuaded that defense counsel actually labored under a conflict of
interest. See Cuyler v. Sullivan, 446 U.S. 335, 350 (1980) (“[U]ntil a
defendant shows that his counsel actively represented conflicting
interests, he has not established the constitutional predicate for his

3
(...continued)
then informed Defendant on the record of these discussions,
outside the presence of the jury.
4
Defendant claims that counsel’s withdrawal prior to
sentencing “indicates the severity of the conflict and that an
actual conflict existed from the moment of disclosure until well
after trial.” This is not the case. As explained to Defendant dur‐
ing trial, defense counsel had a general policy to withdraw from
a case after trial in instances where doing so might facilitate the
assertion of an ineffective assistance claim.

20110015‐CA 12 2013 UT App 39
 State v. Martinez

claim of ineffective assistance.”). Defendant’s claim for ineffective
assistance therefore fails.

¶30 We next address whether the trial court adequately inquired
into Defendant’s complaints regarding his trial counsel. “[W]hen
a defendant expresses dissatisfaction with counsel, a trial court
must make some reasonable, non‐suggestive efforts to determine
the nature of the defendant’s complaints.” State v. Pando, 2005 UT
App 384, ¶ 24, 122 P.3d 672 (citations and internal quotation marks
omitted) (alteration in original). The court should “apprise itself of
the facts necessary to determine whether the defendant’s
relationship with his . . . appointed attorney has deteriorated to the
point that sound discretion requires substitution or even to an
extent that his . . . right to counsel would be violated but for
substitution.” State v. Pursifell, 746 P.2d 270, 273 (Utah Ct. App.
1987).

¶31 Defendant contends that the trial court perfunctorily
dismissed his renewed motion to substitute counsel on the second
day of trial and should have inquired more fully. However,
Defendant’s midtrial complaint about his counsel was essentially
a reiteration of the arguments he had made when asking for new
counsel prior to trial. The court recognized as much when it
indicated to Defendant that it had already denied his motion for
new counsel. After admitting that he forgot that he had been
present when the motion to sever had been argued and decided,
Defendant stated, “I’ll agree to go forward with this counsel.”
Defendant’s argument for renewing the motion was that his
lawyers felt intimidated by him and that he felt this created a
conflict of interest that affected their ability to communicate with
each other. The court asked both defense attorneys if they were
able to “vigorously represent” Defendant; they responded
affirmatively. And their actions throughout trial, outlined in some
detail above, speak louder than their words. We therefore conclude
that the trial court was adequately apprised of Defendant’s
complaints before denying Defendant’s motion for new counsel.

20110015‐CA 13 2013 UT App 39
 State v. Martinez

¶32 Because we determine that Defendant’s attorneys did not
have a conflict of interest and that the trial court adequately
inquired into Defendant’s dissatisfaction within his counsel, we
review the court’s ultimate denial of his motion for substitution of
counsel only for an abuse of discretion. See State v. Scales, 946 P.2d
377, 381 (Utah Ct. App. 1997). We conclude that the trial court was
well within its discretion in denying Defendant’s request for the
appointment of new counsel.

¶33 Affirmed.

THORNE, Judge (dissenting):

¶34 I respectfully dissent from the majority’s decision
determining that the trial court was adequately apprised of
Defendant’s complaints before it denied Defendant’s motion for
substitution of counsel. The trial court’s failure to further inquire
into and fully inform Defendant of the circumstances pertaining to
the conflict of interest, are flaws affecting the framework within
which the trial proceeded that are equivalent to structural error. See
State v. Cruz, 2005 UT 45, ¶ 17, 122 P.3d 543 (“Structural errors are
flaws in the framework within which the trial proceeds, rather than
simply an error in the trial process itself.” (citation and internal
quotation marks omitted)). As a result, I would conclude that the
trial court erred when it failed to conduct a proper inquiry into the
conflict of interest issues.

¶35 “During an attorney‐client relationship, an attorney owes a
client a fiduciary duty of loyalty, which requires the attorney to
exercise impeccable honesty, fair dealing, and fidelity in dealings
with the client.” Roderick v. Ricks, 2002 UT 84, ¶ 32, 54 P.3d 1119
(citation and internal quotation marks omitted). “At a minimum,
an attorney’s duty of loyalty to his or her client requires the
attorney to refrain from acting as an advocate against the client,
even in a case unrelated to the cause for which the attorney is

20110015‐CA 14 2013 UT App 39
 State v. Martinez

retained.” State v. Holland, 876 P.2d 357, 359–60 (Utah 1994). “The
right to counsel guaranteed by the Constitution contemplates the
services of an attorney devoted solely to the interests of his client.” Id.
at 359 (additional emphasis omitted) (citation and internal
quotation marks omitted). Likewise, the rules forbidding an
attorney with an undisclosed conflict of interest from representing
a client, suggest that the duty of loyalty essentially requires
attorneys who may have divided loyalty, and thereby adversely
affect the client, to refrain from undertaking such representation.
Cf. Restatement (Third) of The Law Governing Lawyers § 121
(2000) (“Unless all affected clients . . . consent . . . , a lawyer may
not represent a client if the representation would involve a conflict
of interest. A conflict of interest is involved if there is a substantial
risk that the lawyer’s representation of the client would be
materially and adversely affected by the lawyer’s own interests . . . .”
(emphasis added)); see also id. § 121 cmt. b. (“The prohibition
against lawyer conflicts of interest reflects several competing
concerns. First, the law seeks to assure clients that their lawyers
will represent them with undivided loyalty.”). Indeed, “[t]he duty
of loyalty is so essential to the proper functioning of the judicial
system that its faithful discharge is mandated not only by the Rules
of Professional Conduct, but also, in criminal cases by the Sixth
Amendment right of a criminal defendant to the effective
assistance of counsel.” Holland, 876 P.2d at 359. “The faithful
discharge of that duty is a vital factor both in uncovering and
making clear to a court the truth on which a just decision depends
and in protecting the rights of persons charged with a crime.” Id.

¶36 The facts of this case are, in my experience, both unique and
troubling. On the first day of trial, one defense counsel conducted
what the trial judge considered to be an improper impeachment
effort.5 Later that evening, without Defendant’s knowledge, both

5
The prosecutor objected to defense counsel’s questioning
and the trial court chose to admonish defense counsel in front of
(continued...)

20110015‐CA 15 2013 UT App 39
 State v. Martinez

of his defense counsel engaged in ex parte communications with
the district court’s presiding judge regarding their feelings of
intimidation by Defendant and their concerns about their own
ability to adequately represent Defendant. The presiding judge
then communicated defense counsel’s conflict of interest concerns
to the trial judge. The next morning before trial, the trial judge
conducted an in‐chambers discussion, without including
Defendant, regarding the events of the previous evening and
defense counsel’s feelings of intimidation. The trial court then
provided defense counsel with an opportunity to discuss the issue
with one another and with the prosecution. The prosecutor spoke
with defense counsel about the safety measures that the State could
take to alleviate any concerns they may have and offered different
safety scenarios.6

¶37 Thereafter, the court informed Defendant that his defense
counsel had disclosed to the trial court that they were intimidated
by him and that nonetheless the court was proceeding with trial.
Specifically, the trial court told Defendant,

I’ve been informed by your counsel that they
feel intimidated by you, whether rightfully or
wrongfully they feel intimidated in a way and have
disclosed that intimidation and that has perhaps
caused them to do things that they would not

5
(...continued)
the jury stating that she had conducted an incorrect impeach‐
ment. The court then excused the jury and further addressed
defense counsel on the improper impeachment, stating “[Y]ou
know better than that, right?” She responded, “Right.”
6
Defense counsel apparently accepted the prosecutor’s
assistance, stating to the court that although they were worried
about their own safety, “[t]he State is going to help [us] out.
We’ll be fine.”

20110015‐CA 16 2013 UT App 39
 State v. Martinez

otherwise do as officers of the Court. I’m thinking of
yesterday’s impeachment, for example . . . . I don’t
know if that’s a fair example or not. But that is an
appropriate disclosure to place on the record.

We’re going forward with this trial. Okay?

After a brief discussion on the impeachment effort, Defendant
stated that he was going to file a request for substitute counsel. In
support of his request, Defendant initially expressed his concerns
about defense counsel in terms of his dissatisfaction with their trial
strategy. The trial court reminded Defendant that the court had
previously denied Defendant’s motion for new trial on that basis.
After further discussion about the impeachment effort, Defendant
reiterated his request for new trial counsel, and the following
relevant exchange occurred:

THE DEFENDANT: I have a right, you know,
to a fair trial. And I don’t believe I’m being
represented to the fullest like they say—like to be
represented. So, I have, you know, problem in
(inaudible.)

THE COURT: You filed a new motion. Filed a
motion for new counsel which was denied. Are you
looking for new counsel now?

THE DEFENDANT: Yeah.

THE COURT: And what would the basis be?

THE DEFENDANT: Ineffective counsel.

THE COURT: Well, based upon what?

THE DEFENDANT: My lawyers, they feel
intimidated by me, so, therefore, we have a conflict of

20110015‐CA 17 2013 UT App 39
 State v. Martinez

interest. So therefore, they feel they are afraid of me or
whatever their complaints would be. So, therefore, there’s
a conflict between me and the lawyers. So, therefore, I
don’t see how we can, you know, communicate without me
feeling that there’s a fear between me and them.

(Emphasis added.)

¶38 The events of this case present several troubling conflict of
interest issues pertaining to whether defense counsel’s actions
violated their duty of loyalty to their client and whether the trial
court properly performed its duty of inquiry. The first task is to
consider whether defense counsel breached their duty of loyalty
and then consider whether the trial court properly inquired into the
potential conflict of interest issues.

I. Defense Counsel’s Duty of Loyalty

¶39 First, it is apparent from the record that the loyalties of
Defendant’s attorneys were indeed compromised as demonstrated
by defense counsel’s actions related to their claims of intimidation
by Defendant.7 Here, defense counsel were burdened by a conflict

7
The majority concludes that “defense counsel continued
to zealously represent Defendant, despite Defendant’s complaints
and apparent efforts at intimidation.” Supra ¶ 26. However,
there is nothing in the record that establishes that Defendant
actively intimidated defense counsel. There is no evidence that
Defendant, directly or indirectly, threatened counsel either
verbally or with physical gestures. Indeed, defense counsel
never articulated any action taken by Defendant that caused
counsel to feel “a sense of intimidation.” The trial court stated
that defense counsel “couldn’t really articulate what it was, but
that there was a sense of being compromised in the ability to
exercise a judgment they normally exercise.” The only reference
(continued...)

20110015‐CA 18 2013 UT App 39
 State v. Martinez

between Defendant’s interests and their apparent concerns about
their own safety. Instead of addressing their conflict of interest
concerns with Defendant, defense counsel took actions without
Defendant’s knowledge and contrary to Defendant’s interests by
engaging in various ex parte communications with the presiding
judge, the trial judge, and the prosecutor. In so doing, defense
counsel appear to have violated their duty to keep their client’s
confidence and properly inform their client about their actions. See
Utah R. Prof’l Conduct 1.4(a)(5) (“A lawyer shall: . . . consult with
the client about any relevant limitation on the lawyer’s conduct
when the lawyer knows that the client expects assistance not
permitted by the Rules of Professional Conduct or other law.”); see
also Restatement (Third) of The Law Governing Lawyers § 20 (2000)
(providing that when an issue of conflict arises, the lawyer must
consult with the client and proceed in the best interest of the client).

¶40 Because defense counsel failed to consult with Defendant,
or even inform him of their actions on the conflict of interest issue,
Defendant was uninformed and unprepared to present his request
for substitute counsel. Based on defense counsel’s actions, I
conclude that counsel’s personal interests diverted their efforts
away from Defendant’s interest and may well have impaired their
abilities to represent Defendant, thereby violating their duty of
loyalty to Defendant.

7
(...continued)
to Defendant’s behavior was during an in‐chambers discussion,
wherein the presiding judge mentioned that defense counsel
“indicated that there was a sense of intimidation and staring
down episode and we did not discuss what was behind that, just
had to do with counsel be given a response there was the stare
down.” The circumstances surrounding Defendant’s staring are
unknown. Defendant may have been simply spacing out, think‐
ing, or keeping a steady gaze as a means of controlling himself.
In any case, without more information, the stare down incident
does not amount to an act of intimidation.

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 State v. Martinez

II. The Trial Court’s Duty of Inquiry

¶41 Second, once the trial court was informed about the
potential conflict of interest between defense counsel and
Defendant, the court had a duty to inquire into the matter with
both counsel and Defendant. The duty of inquiry required the trial
court to

make some reasonable, non‐suggestive efforts to
determine the nature of the defendant’s complaints
and to apprise itself of the facts necessary to
determine whether the defendant’s relationship with
his or her appointed attorney has deteriorated to the
point that sound discretion requires substitution or
even to such an extent that his or her Sixth
Amendment right would be violated but for
substitution.

State v. Vessey, 967 P.2d 960, 962 (Utah Ct. App. 1998) (citation and
internal quotation marks omitted). Here, the trial court did not
conduct a proper inquiry with defense counsel regarding their
conflict of interest claim during the initial in‐chambers discussion
of the matter, nor did the court inquire with Defendant about his
relationship with his counsel after disclosure of the potential
conflict. Without such an inquiry the trial court was unable to
assess the situation and determine whether an actual conflict of
interest existed.

A. Trial Court’s Duty To Inquire Into Defense Counsel’s Conflict of
Interest Claim

¶42 In this case, the trial court merely conducted perfunctory
questioning about the potential conflict of interest with defense
counsel. During the in‐chambers discussion, defense counsel
expressed concerns about their ability to adequately and zealously
represent Defendant given their claims of intimidation. In

20110015‐CA 20 2013 UT App 39
 State v. Martinez

addressing defense counsel’s concern, the trial court did not
inquire about the acts causing counsel’s claims of intimidation.
Instead, the court reminded defense counsel of their duty to
“adequately and zealously . . . represent [Defendant],” and asked
directed questions which were not sufficient to uncover or remedy
the potential conflict of interest. In particular, the trial court
engaged in the following colloquy:

THE COURT: It’s your duty [to] adequately and
zealously . . . represent [Defendant]. And it sounds to
me, you correct me if I am wrong, it’s not that you
are foregoing legitimate cross‐examination, you are
not foregoing the—and I don’t want you to answer
this in any way that would invade the integrity of the
attorney/client privilege or work product, that it’s not
that you are foregoing good stuff, it’s that perhaps
his intimidation has led you to do things that would
otherwise be against your professional judgment.

[DEFENSE COUNSEL]: That’s accurate, your Honor.

A similar colloquy occurred again after Defendant requested
substitute counsel, whereby the trial court asked one defense
counsel, “[D]o you believe that you can vigorously represent this
Defendant?” and, “[I]s any of this going to affect your ability to act
as a zealous advocate?” Defense counsel responded, “Yes, your
Honor, I can,” and, “No, your Honor, I’m still ready to go
forward.”8

¶43 Neither discussion fulfilled the trial court’s duty to inquire
into the circumstances of the potential conflict of interest with
counsel and ensure that defense counsel could pursue their client’s

8
The trial court asked a similar question of defense co‐
counsel and received a response that she too was able to act as a
zealous advocate for Defendant.

20110015‐CA 21 2013 UT App 39
 State v. Martinez

best interest. The trial court’s inquiry into defense counsel’s ability
to represent their client was deficient and in many ways similar to
cases of failed attempts to properly rehabilitate a juror after issues
of bias have been raised. See State v. Wach, 2001 UT 35, ¶ 33, 24 P.3d
948 (“It is not enough if a juror believes that he or she can be
impartial and fair. Indeed, this court has previously noted that [a]
statement made by a juror that she intends to be fair and impartial
loses much of its meaning in light of other testimony and facts
which suggest a bias.” (citation and internal quotation marks
omitted)). Personal interests of defense counsel “that are
inconsistent with those of a client might significantly limit the
lawyer’s ability to pursue the client’s interest.” Restatement (Third)
of The Law Governing Lawyers § 125, cmt. b. (2000). In this case,
the trial court properly explored neither defense counsel’s personal
interests, nor the factual basis for the apparent conflict or their
ability to represent Defendant.

B. Trial Court’s Duty To Disclose the Potential Conflict Claim
and Inquire Into the Matter with Defendant

¶44 Similarly, the trial court conducted perfunctory questioning
about the potential conflict of interest with Defendant. When the
trial court learned of defense counsel’s actions, and certainly once
Defendant conveyed renewed dissatisfaction with his counsel and
a request to change attorneys, the trial court was required to
conduct a meaningful inquiry into the potential conflict with
Defendant. Instead of making non‐suggestive efforts to determine
the nature of the conflict and the relationship between defense
counsel and Defendant, the trial court asked very direct questions
and did not explore the issue with Defendant related to a potential
break down in communication based on defense counsel’s feelings
of intimidation. Then, after declaring that no conflict existed the
trial court denied Defendant’s renewed request for substitute
counsel. For instance, after Defendant renewed his substitute
counsel request, the court merely inquired of defense counsel
whether they believed that they could vigorously represent
Defendant. See supra ¶ 42. Such questions were both rehabilitative

20110015‐CA 22 2013 UT App 39
 State v. Martinez

and directive, and did not explore the potential conflict. The trial
court’s limited inquiry was not sufficient to fulfill the trial court’s
duty to “make some reasonable, non‐suggestive efforts to determine
the nature of the defendant’s complaints.” State v. Vessey, 967 P.2d
960, 962 (Utah Ct. App. 1998) (emphasis added) (citation and
internal quotation marks omitted); see also id. (“Even when the trial
judge suspects that the defendant’s requests are disingenuous and
designed solely to manipulate the judicial process and to delay the
trial, perfunctory questioning is not sufficient.” (citation and
internal quotation marks omitted)).

¶45 Compounding the deficiency in the trial court’s conflict of
interest inquiry is the fact that neither defense counsel nor the trial
court informed Defendant of the factual circumstances pertinent to
the conflict of interest issue. Defendant was not informed about the
other actions defense counsel took based on their feelings of
intimidation, i.e., their ex parte communication with the presiding
judge and defense counsel’s disclosures and subsequent
arrangement with the prosecution for additional security measures.
Nor was Defendant informed about defense counsel’s own
concerns about their ability to adequately represent Defendant.
Defense counsel had informed the court that “the bigger concern
is just our ability to continue to adequately and zealously represent
[Defendant] in trial.” Without such knowledge about the conflict
of interest claim, Defendant would not have been able to, even had
the trial court conducted a proper inquiry into the potential conflict
of interest issue, have a meaningfully discussion with the court on
the matter. Thus, the trial court’s duty of inquiry failed both by
insufficiently informing Defendant of the pertinent facts and
declining to conduct a thorough inquiry into the conflict of interest
issue with Defendant.

¶46 In sum, although Defendant was given an opportunity to
identify conflict of counsel issues, because he was not present for
most of the relevant discussions he was not adequately informed
of the facts, and particularly the breadth of the potential conflict,
sufficient to provide a meaningful explanation of the conflict.

20110015‐CA 23 2013 UT App 39
 State v. Martinez

Moreover, the trial judge, who was aware of the factual
circumstances related to the conflict of interest, neither adequately
apprised Defendant of the circumstances related to the conflict
issue nor conducted a proper follow‐up inquiry into the conflict.
Thereafter, the trial court did not fulfill its duty to “apprise itself of
the facts necessary to determine whether the defendant’s
relationship with his or her appointed attorney has deteriorated to
the point that sound discretion requires substitution.” See Vessey,
967 P.2d at 962 (citation and internal quotation marks omitted). As
a result, I would conclude that the trial court erred in not
conducting a more meaningful inquiry into the conflict of interest
issue and would reverse and remand as a substantial and structural
error, without a requirement to demonstrate prejudice. See generally
State v. Cruz, 2005 UT 45, ¶ 17, 122 P.3d 543 (“[A] structural error
analysis presumes prejudice.”).

20110015‐CA 24 2013 UT App 39