State v. Martinez-Castellanos

2017 UT App 13

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
ABISAI MARTINEZ-CASTELLANOS,
Appellant.

Opinion
No. 20130432-CA
Filed January 20, 2017

Fourth District Court, Nephi Department
The Honorable M. James Brady
No. 101600146

Linda M. Jones and Noella A. Sudbury, Attorneys
for Appellant
Sean D. Reyes and Christopher D. Ballard, Attorneys
for Appellee

JUDGE STEPHEN L. ROTH authored this Opinion, in which JUDGE
KATE A. TOOMEY concurred. JUDGE GREGORY K. ORME concurred
in part and concurred in the result in part, with opinion, to
which JUDGE ROTH filed a separate response.

ROTH, Judge:

¶1 Abisai Martinez-Castellanos appeals his convictions for
two counts of possession or use of a controlled substance, Utah
Code Ann. § 58-37-8(2)(b)(ii) (LexisNexis 2012), one count of
possession of drug paraphernalia, id. § 58-37a-5, and one count
of driving with a controlled substance in the body, id. § 41-6a-517
(2014). Because of the cumulative effect of several errors, our
confidence that Martinez-Castellanos received a fair trial is
undermined. We vacate his convictions and remand for a new
trial.
 State v. Martinez-Castellanos

BACKGROUND 1

The Traffic Stop

¶2 In June 2010, Martinez-Castellanos was driving his car on
Interstate 15 in central Utah. From the other side of the interstate
where he was completing a traffic stop, a Utah Highway Patrol
trooper observed Martinez-Castellanos’ car traveling
northbound. The trooper got in his patrol car and, without
turning off his emergency lights from the prior stop, crossed the
median and accelerated to close the distance between himself
and Martinez-Castellanos. When he got closer, the trooper saw
that Martinez-Castellanos had California license plates and that
the rear license plate had only one registration sticker. According
to the trooper, California law required two registration stickers
on the license plate—one for the month and one for the year.

¶3 When Martinez-Castellanos saw the trooper’s patrol car
with its emergency lights engaged, he pulled his car over to the
side of the road. Martinez-Castellanos provided the trooper with
his driver license, registration, and proof of insurance. The
trooper took the information to his patrol car and checked it. He
also ran a warrants check and a background check for criminal
history.

¶4 The trooper learned that, although Martinez-Castellanos
had not properly affixed a registration sticker to the license plate,
the registration was valid. He also learned that Martinez-
Castellanos had miscellaneous theft charges dating back to 1997
and charges for drug offenses in 2001 and 2006, with a probation

1. “On appeal, we review the record facts in a light most
favorable to the jury’s verdict and recite the facts accordingly.
We present conflicting evidence only as necessary to understand
issues raised on appeal.” State v. Holgate, 2000 UT 74, ¶ 2, 10 P.3d
346 (citations and internal quotation marks omitted).

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 State v. Martinez-Castellanos

revocation for possession of a controlled substance. The trooper
testified that this information, along with Martinez-Castellanos’
rapid speech and movements, “heightened” his suspicions that
Martinez-Castellanos “might be [under] the influence of
something.”

¶5 The trooper returned to the car and asked Martinez-
Castellanos to step out so that he could conduct field sobriety
tests. The trooper also asked if Martinez-Castellanos had any
weapons in the car, to which he responded that there were
knives in the center console. Based on field sobriety tests, the
trooper concluded that Martinez-Castellanos was under the
influence of a controlled substance, and based on Martinez-
Castellanos’ criminal history, the trooper believed that he was a
restricted person who could not legally possess knives. The
trooper arrested Martinez-Castellanos and searched his car. The
trooper found two pocket knives, a marijuana grinder, a lighter,
two glass pipes, a wrapper containing three pills that later tested
positive for hydrocodone, another wrapper containing a “white,
crystal-like substance” that later tested positive for
methamphetamine, and a wrapper containing seven prescription
pills. Later, at the jail, Martinez-Castellanos admitted the he had
smoked marijuana but refused to submit to a urine test. The
trooper obtained a warrant for a blood draw, which tested
positive for a marijuana metabolite at a level consistent with
recent marijuana use.

The Motion to Suppress

¶6 Before trial, Martinez-Castellanos’ trial counsel moved to
suppress the evidence from the car and the blood draw, arguing
that the “evidence was seized in violation of [Martinez-
Castellanos’] constitutional rights to be free from unreasonable
search and seizure.” The trial court held an evidentiary hearing
on the motion and the trooper testified for the prosecution and
was cross-examined by trial counsel. Prior to the hearing, trial
counsel had not requested or reviewed the dash-cam video of

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 State v. Martinez-Castellanos

the traffic stop. At the end of the hearing, trial counsel requested
a copy of the video as well as thirty days to “submit a brief on
the matter,” and the trial court set a briefing schedule. Trial
counsel did not timely file a brief, but about a week after it was
due submitted a motion “request[ing] additional time in which
to file his brief regarding the suppression of evidence.” The court
granted the motion but trial counsel again failed to file a brief in
support of his motion to suppress. The following month, having
received nothing from defendant’s trial counsel, the prosecution
submitted its own memorandum in opposition to the motion to
suppress, to which trial counsel did not respond. The district
court eventually ruled on the motion to suppress stating that,
“having reviewed testimony given and [the] memorandum
provided [by the State], the Motion to Suppress is hereby
denied.”

¶7 Nearly two weeks later, trial counsel moved to set aside
that decision and again requested additional time to file a
supporting memorandum. The motion was accompanied by a
transcript of the hearing on the motion to suppress. The district
court granted the request and gave trial counsel an additional
week to file his supporting memorandum. On the due date, trial
counsel again failed to file a memorandum in support of the
motion to suppress. Instead, counsel filed a motion captioned
“Submission of Motion to Suppress,” which stated in its entirety,

Comes now the Defendant by and through his
legal counsel and submits the Motion to Suppress
Evidence to the Court based upon the transcript of
the suppression hearing which has now been
completed and provided to the Court and on the
Memorandum provided to the Court by . . . [the]
Deputy Juab County Attorney.

¶8 The trial court then entered an order reinstating its prior
decision explaining that, “having received no memorandum in
support of defendant’s motion to dismiss by the date authorized,

20130432-CA 4 2017 UT App 13
 State v. Martinez-Castellanos

the Court reinstates its prior order denying defendant’s motion
to suppress.”

¶9 Trial counsel later filed two more motions to suppress the
evidence from the traffic stop, one at the beginning of trial and
one after trial was complete, again without supporting
memoranda. The prosecution opposed those motions as
untimely and deficient under the Rules of Criminal Procedure.
The trial court ultimately denied both motions.

Jury Selection and Trial

¶10 Before trial began, the trial court had a twenty-six
member jury venire fill out juror questionnaires. After the
questionnaires were completed the trial court asked the venire
members additional “yes” or “no” background questions about
matters that might influence their attitudes and opinions
regarding the case. Before beginning the questioning, the court
advised the venire members that it would “not . . . ask you to
describe anything in open court right now,” but that the
attorneys “may . . . want to ask you more questions about that
[affirmative answer] later” and that “[w]e’ll go into a place
where we can have some privacy and discuss it.” The trial court
then asked approximately ten questions, three of which are
pertinent here: (1) whether “you, a family member, or close
friend [have] been a victim of a crime”; (2) whether “you, a
family member, or close personal friend [have] been involved
with the same kind of conduct that is being discussed in this
case”; and (3) whether “you[,] . . . a family member[,] or a close
personal friend . . . is a law enforcement officer or works for a
law enforcement department.” After completing these
background questions, the court stated,

Counsel, that concludes the voir dire that I’m going
to conduct in court. For members of the
prospective jury, I’m going to take a break now
and meet with counsel in my chambers, and they

20130432-CA 5 2017 UT App 13
 State v. Martinez-Castellanos

will determine any additional questions that they’d
like to ask. They may ask questions of each of you
or only some of you. . . . I will be in a brief recess
until we come back in, which may be in a few
minutes. Counsel, if you’ll just join me back in my
chambers, I’d appreciate it.

Martinez-Castellanos was not invited into chambers by either
the court or his counsel, and he remained in the courtroom while
further questioning of individual venire members took place.

¶11 In chambers, the court asked the attorneys if they had
questions for any of the individual venire members. The court
then individually called those identified into chambers.
However, the courtroom microphone was left on during the
entire process, rendering the audio recording of the in-chambers
questioning unintelligible. Because no transcript or record was
available for the portions of the voir dire that occurred in
chambers, on appeal Martinez-Castellanos moved this court to
supplement the record with declarations from the two attorneys
for the prosecution and from Martinez-Castellanos’ trial counsel
under Rule of Appellate Procedure 11(h). Both parties stipulated
to the supplemented record. By its nature—reconstructed out of
the memories of participants roughly fifteen months after the
fact—the record of the in-chambers voir dire is not fully
comprehensive and lacks detail in many areas.

¶12 Based on this reconstructed record, it appears that over
the course of approximately one hour, the district court invited
thirteen of the twenty-six venire members into chambers for
individual questioning. After questions from the attorneys, the
court asked each prospective juror “if he or she could be fair and
impartial.” Once the person had been excused to the courtroom,
the court then typically asked whether the attorneys had
concerns with that person serving on the jury and whether the
attorneys passed the prospective juror for cause, though there is
no indication that specific concerns were raised about any

20130432-CA 6 2017 UT App 13
 State v. Martinez-Castellanos

particular venire member or whether any were actually
challenged for cause.

¶13 Among the venire members called into chambers were
three individuals who would eventually become, for purposes of
the trial, Juror One, Juror Two, and Juror Six. Juror One was a
retired Utah Highway Patrol trooper and supervisor with
extensive experience in drug interdiction on Utah’s highways
and with whom trial counsel had worked when he was the
county attorney. While in chambers, Juror One disclosed that he
knew the trooper who had made the traffic stop, but he assured
the attorneys and the court that he could be fair, would make up
his mind based on the facts, would not give the trooper’s
testimony any more weight than the other witnesses. Juror Two
indicated in chambers that she had been the victim of a violent
crime, that she was against drugs, that her son had once been
prosecuted for drugs, and that if a person had drugs in the car,
he was probably guilty. Juror Six, according to trial counsel,
seemed quite reluctant to disclose what was going on in her
mind. When the court asked if she could be fair and impartial,
Juror Six expressed reservations about her ability to function as a
juror. Following up, the court asked her the same question a
second time, to which she replied that she understood what the
judge wanted and believed she could serve as a juror. There is
no indication in the record that any of these three prospective
jurors were questioned further or challenged for cause.

¶14 At the conclusion of this process the attorneys returned to
the courtroom and exercised their peremptory strikes. Martinez-
Castellanos’ trial counsel did not discuss what had occurred in
chambers with Martinez-Castellanos and exercised his four
peremptory strikes without consultation with his client.

20130432-CA 7 2017 UT App 13
 State v. Martinez-Castellanos

¶15 The court announced the names of the eight individuals
who would serve on the jury, which included Juror One, 2 Juror
Two, and Juror Six. It then asked the prosecution and trial
counsel whether the listed individuals “constitute[d] the jury
[you] selected.” Both answered in the affirmative and the court
administered the juror’s oath. Following a one-day trial, the jury
convicted Martinez-Castellanos of two felonies for possession or
use of a controlled substance and two related misdemeanors.

Post-Trial Proceedings

¶16 One week after the trial and on its own initiative, the trial
court met with counsel for both parties and issued a notice
indicating that it was considering granting a new trial. The
notice stated that “the court is concerned with a question of
whether any error or impropriety occurred in this case which
may have had a substantial adverse effect on the rights of the
defendant.” 3 The court specifically “expressed concern whether
[Martinez-Castellanos] received effective assistance of counsel.”
The court stated that this concern was “based solely on the
court’s own consideration of two events in the history of this
case”: trial counsel’s “failure to file any memorandum following
. . . [the] motion to suppress,” and trial counsel’s “failure to
challenge or remove a potentially biased juror from the jury on
the day of trial.” Regarding the motion to suppress, the court
stated,

2. Juror One eventually served as the jury foreman.

3. Rule 24 of the Utah Rules of Criminal Procedure provides,
“The court may, upon motion of a party or upon its own
initiative, grant a new trial in the interest of justice if there is any
error or impropriety which had a substantial adverse effect upon
the rights of a party.” Utah R. Crim. P. 24(a).

20130432-CA 8 2017 UT App 13
 State v. Martinez-Castellanos

Without coming to a conclusion on the final issue
presented in the motion to suppress, the court
notes that based on the testimony elicited at trial,
there is at least an arguable basis to have pursued
defendant’s motion to suppress, which [trial
counsel] failed to do.

¶17 Regarding the “potentially biased juror” issue, the court
stated that it was “also concerned that a prospective juror who
may have a bias was ultimately allowed to remain on the jury to
hear and decide the case.” The court identified Juror One and
stated that its “concern for potential bias” was based on “the
juror’s many years working as a highway patrolman, his prior
involvement in numerous interdiction cases with facts similar to
the case being tried, and/or his brief prior association with the
State’s only witness who is a current highway patrolman.”

¶18 In the course of a subsequent hearing on the matter, the
court stated that, based on its reading of a recent Utah Court of
Appeals decision, it had concluded that “who remain[ed] on the
final jury panel [was] not a valid concern.” 4 However, the court
decided to appoint conflict counsel to represent Martinez-
Castellanos in post-trial proceedings regarding the motion to
suppress issue. 5 The court described its concerns as:

4. The court seems to be referring to State v. Smith, 2012 UT App
338, 291 P.3d 869. The court dismissed the part of its original sua
sponte motion relating to its concern about potential juror bias,
calling it a “non-issue” “[b]ased on [its] review of the appellate
court [case],” but did not explain how Smith influenced that
decision.

5. The court believed conflict counsel was necessary to address
questions regarding trial counsel’s performance in connection
with the original motion to suppress and was concerned that, on
(continued…)

20130432-CA 9 2017 UT App 13
 State v. Martinez-Castellanos

[W]hether or not the evidence that supported the
continued retention of [Martinez-Castellanos] after
[the trooper] determined that the vehicle was
registered, and that the driver was who he said he
was, and that he had a valid driver license,
whether there was then at that point justification
for having [Martinez-Castellanos] step out of the
car and further perform . . . field sobriety tests;
[and] whether there was reasonable suspicion.

¶19 Approximately a month later (and just a day before the
sentencing hearing), conflict counsel submitted a memorandum
entitled “Amicus Brief.” The Amicus Brief did not address the
extended detention of Martinez-Castellanos nor analyze the
evidence obtained following the traffic stop or applicable law, as
the court had requested. Instead, conflict counsel wrote in the
Amicus Brief, “The issue presented to this Court and the catalyst
for this Amicus Brief, is succinctly stated as: Whether [Martinez-
Castellanos’] failure to file a legal memorandum in support of
his Motion to Suppress rises to the level of ineffective assistance
of counsel.” Conflict counsel went on to discuss the two-part
Strickland analysis for ineffective assistance of counsel as it
applied to the burdens of the parties in briefing suppression
issues. The Amicus Brief concluded that the district court’s
earlier denial of the motion to suppress was sufficient to include
“an implicit determination that the facts elicited at the
evidentiary hearing” supported a lawful search, essentially
advising the court that its decision denying the motion to
suppress had addressed the issues. The Amicus Brief made no
effort to advocate for a different result on Martinez-Castellanos’

(…continued)
the issue of “what was done” and “why it was done,” “the best
source of that information may be [trial counsel],” who might be
required to testify on those issues.

20130432-CA 10 2017 UT App 13
 State v. Martinez-Castellanos

behalf, nor did conflict counsel address the trial court’s concern
about whether the evidence adduced at trial was pertinent to the
suppression issue.

¶20 At a subsequent hearing, the court again raised its
concern regarding “whether or not there was a justification for
extending the time” of the traffic stop and the evidence obtained
following the stop. The court stated that it understood conflict
counsel’s conclusion:

[B]ecause . . . a motion to suppress evidence was
presented [to the court], that motion shift[ed] the
burden to the State to prove their case to a certain
standard why the evidence should not be
suppressed, and that the State presented evidence
at the time of a hearing, and that [the court] ruled
on that evidence, and that [the court] had denied
the motion to suppress. Independent from whether
or not [trial counsel] filed an argument there, the
fact that he filed the motion would have been
sufficient to place the burden on the State to prove
that the motion to suppress should be
denied. . . . [And] it did not appear to [conflict
counsel] that [the court] would find an injustice or
an impropriety in the proceedings or the rulings
that were made that could be attributed to the
defendant’s attorney at the time.

¶21 The prosecution responded that it concurred with the
findings of conflict counsel in Amicus Brief. Conflict counsel also
agreed with the court’s statement. Conflict counsel then
provided one alternative suggestion for the court to consider,
specifically that Martinez-Castellanos could renew his motion to
suppress or make a motion for a new trial if there were
significant or substantial discrepancies between the evidence
offered at the evidentiary hearing and that offered at trial. But,
ultimately, conflict counsel concluded that this alternative path

20130432-CA 11 2017 UT App 13
 State v. Martinez-Castellanos

would be premature at this point in time. The court then decided
that, “[b]ased on the information and arguments that have been
presented,” it would withdraw its sua sponte motion because it
considered the issue resolved.

¶22 At that point, the court released conflict counsel from his
representation of Martinez-Castellanos and reinstated trial
counsel, who affirmed that he was “prepared to go forward . . .
with sentencing.” Martinez-Castellanos was sentenced to serve
zero to five years in the Utah State Prison. The court suspended
the sentences and placed Martinez-Castellanos on probation.

¶23 Trial counsel then filed a timely motion for a new trial,
again asking the court to suppress the evidence from the initial
traffic stop. Trial counsel argued that the “best proof” for his
motion was the district court’s own “concern that was expressed
by the Court in its Memorandums and the fact that all of the
evidence upon which reliance is made was not fully developed
until the time of the trial.” Once again, trial counsel filed no
memorandum in support of this motion but simply attached the
transcripts of the preliminary hearing, the suppression hearing,
and the trooper’s trial testimony. In the motion, trial counsel
asserted,

[I]n the areas marked out in these transcripts, there
is a substantial change of the officer’s testimony
regarding the reason for the stop and the time and
delay in the stop. That was not fully explained
until the time of trial. Thus, the prior Order of the
Court denying the Motion to Suppress should be
set aside and reconsidered because of the new
testimony that was offered at trial.

¶24 Counsel did not further analyze the issue. The
prosecution opposed trial counsel’s motion as untimely and
inadequate, and the trial court denied the motion without
explanation. Martinez-Castellanos appeals his convictions.

20130432-CA 12 2017 UT App 13
 State v. Martinez-Castellanos

ISSUES AND STANDARDS OF REVIEW

¶25 With the assistance of new counsel, Martinez-Castellanos
raises several issues that he acknowledges were not preserved in
the trial court and must therefore be considered under principles
of plain error or ineffective assistance of counsel. His first two
issues relate to jury selection. He asserts that he was “denied the
right to participate in the jury-selection process” when he was
not given the opportunity to participate in chambers where
significant aspects of voir dire took place. He argues that this
omission amounts to both ineffective assistance of counsel and
plain error on the part of the trial court. He further asserts that
his trial counsel “was ineffective for failing to request that
[certain] prospective jurors be dismissed for cause and/or failing
to remove them with peremptory strikes.”

¶26 Martinez-Castellanos next argues that trial counsel’s
actions with regard to the motions to suppress evidence
amounted to ineffective assistance of counsel. Lastly Martinez-
Castellanos argues that “the district court erred in failing to
ensure that [he] had the effective assistance of counsel at all
stages of the proceedings, including during post-trial
proceedings.”

¶27 “It is a well-established rule that a defendant who fails to
bring an issue before the trial court is generally barred from
raising it for the first time on appeal.” State v. Irwin, 924 P.2d 5, 7
(Utah Ct. App. 1996). Because Martinez-Castellanos’ arguments
were not preserved below and are raised for the first time on
appeal, we will only address the issues if they meet an
“exception[] to this general rule.” Id.; see also State v. Floyd, 2014
UT App 53, ¶ 6, 321 P.3d 1170 (listing the recognized exceptions
as “plain error, exceptional circumstances, or ineffective
assistance of counsel”). Martinez-Castellanos asserts both the
plain error and ineffective assistance of counsel exceptions.

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 State v. Martinez-Castellanos

¶28 To succeed on his plain error claim, Martinez-Castellanos
“must demonstrate that an error occurred, the error was or
should have been obvious, and the error was prejudicial.” State
v. Moore, 2012 UT App 227, ¶ 5, 285 P.3d 809. “If any one of these
requirements is not met, plain error is not established.” State v.
Dunn, 850 P.2d 1201, 1209 (Utah 1993). To establish his claim of
ineffective assistance of counsel, Martinez-Castellanos “must
show that [his] counsel’s performance was deficient” and that
“the deficient performance prejudiced the defense.” Strickland v.
Washington, 466 U.S. 668, 687 (1984). In other words, Martinez-
Castellanos must show that the errors were ”so serious as to
deprive the defendant of a fair trial, a trial whose result is
reliable.” Id. at 687.

ANALYSIS

¶29 We first address Martinez-Castellanos’ claim that the
assistance provided by his trial counsel during jury selection fell
below the level guaranteed by the Sixth Amendment. We then
address the claim that trial counsel was ineffective in connection
with the motion to suppress and related post-trial proceedings.
We also consider whether the trial court plainly erred by
“fail[ing] to appoint counsel” to represent Martinez-Castellanos
during the court’s sua sponte post-trial motion, instead “simply
appoint[ing] an attorney as amicus to address one distinct issue
for the court.”

¶30 Finally, we discuss the cumulative error doctrine. We
conclude that, although the prejudice from any single error is
elusive when viewed solely through the doctrines of plain error
and ineffective assistance of counsel, “the cumulative effect of
the several errors undermines our confidence that a fair trial was
had.” Cf. State v. Dunn, 850 P.2d 1201, 1229 (Utah 1993) (ellipsis,
citation, and internal quotation marks omitted). We therefore
vacate Martinez-Castellanos’ convictions and remand for a new
trial.

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 State v. Martinez-Castellanos

I. Voir Dire

¶31 Martinez-Castellanos argues that he “was denied the
opportunity to participate in jury selection and was denied the
right to an impartial jury.” Martinez-Castellanos asserts that he
“was deprived of those rights when [trial counsel] failed to
object to the district court’s order excluding him from
participating in jury voir dire in-chambers” and failed to consult
with him during the course of jury selection. In particular,
Martinez-Castellanos argues that because he “was not allowed to
participate” during the in-chambers questioning of prospective
jurors, he was “denied the opportunity to be present at a critical
stage” of his trial.

¶32 We do not resolve the question of whether, as a general
matter, voir dire is a critical stage of trial at which a defendant
has a constitutional right to be present at all times. Instead, we
conclude that the in-chambers voir dire in this case was
sufficiently important that counsel’s failure to provide Martinez-
Castellanos a meaningful opportunity to participate in the
process—either through physical presence in chambers or at
minimum through consultation afterward—amounted to
deficient performance. 6

¶33 “One of the most basic of the rights guaranteed by the
Confrontation Clause [of the Sixth Amendment] is the accused’s
right to be present in the courtroom at every stage of his trial.”
Illinois v. Allen, 397 U.S. 337, 338 (1970). “[E]ven in situations

6. We recognize that there are circumstances where having the
defendant in chambers may not be feasible, but a trial court has
other options, such as conducting this sort of individualized voir
dire in the courtroom with the other jurors excused. See, e.g.,
United States v. Washington, 705 F.2d 489, 497 n.4 (D.C. Cir. 1983)
(discussing the “use of closed circuit television” as one possible
alternative).

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 State v. Martinez-Castellanos

where the defendant is not actually confronting witnesses or
evidence against him, he has a due process right to be present in
his own person whenever his presence has a relation, reasonably
substantial, to the fulness of his opportunity to defend against
the charge.” Kentucky v. Stincer, 482 U.S. 730, 745 (1987) (citation
and internal quotation marks omitted). In discussing this
privilege, the United States Supreme Court has stated,

Although . . . this privilege of presence is not
guaranteed when presence would be useless, or the
benefit but a shadow, due process clearly requires
that a defendant be allowed to be present to the
extent that a fair and just hearing would be
thwarted by his absence. Thus, a defendant is
guaranteed the right to be present at any stage of
the criminal proceeding that is critical to its
outcome if his presence would contribute to the
fairness of the procedure.

Id. (citations and internal quotation marks omitted). In this
regard, “[t]he Sixth Amendment does not provide merely that a
defense shall be made for the accused; it grants to the accused
personally the right to make his defense.” Faretta v. California,
422 U.S. 806, 819 (1975).

¶34 In particular, the defendant’s presence at trial is central to
the implementation of the right to trial by jury and the right to
confrontation. This longstanding right to be present at trial
reflects “the notion that a fair trial [can] take place only if the
jurors [meet] the defendant face-to-face and only if those
testifying against the defendant [do] so in his presence.” Crosby
v. United States, 506 U.S. 255, 259 (1993). “Voir dire plays a
critical function in assuring the criminal defendant that his Sixth
Amendment right to an impartial jury will be honored.” Rosales-
Lopez v. United States, 451 U.S. 182, 188 (1981) (plurality opinion).

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 State v. Martinez-Castellanos

¶35 The Supreme Court has noted that, if “the indictment is
for a felony, the trial commences at least from the time when the
work of empanelling the jury begins.” Gomez v. United States, 490
U.S. 858, 873 (1989) (citation and internal quotation marks
omitted). “The selection of particular jurors . . . arguably has a
reasonably substantial relation to the fullness of a defendant’s
opportunity to defend against a charge, and a defendant’s right
to a fair and just hearing could be thwarted by his or her
absence.” State v. Hubbard, 2002 UT 45, ¶ 33 n.7, 48 P.3d 953; see
also Stincer, 482 U.S. at 745 (“[A] defendant is guaranteed the
right to be present at any stage of the criminal proceeding that is
critical to its outcome if his presence would contribute to the
fairness of the procedure.”).

¶36 The Utah Supreme Court has not yet decided the issue of
whether “discussions between the court and prospective jurors”
is a critical stage of trial at which a defendant is “guarantee[d] a
right to be present.” Hubbard, 2002 UT 45, ¶ 33. 7 But the court has
acknowledged the importance of “the voir dire process . . . as a
means to unearth and assess any possible bias and prejudice in
potential jurors,” State v. Shipp, 2005 UT 35, ¶ 14, 116 P.3d 317,
and the importance of the voir dire process to the fairness of a
trial and the legitimacy of its outcome cannot be disputed. The
information gathered in voir dire is essential to the informed
decision-making that must underlie challenges to individual
jurors for cause or the intelligent exercise of peremptory
challenges. It is the heart of the process that trial courts use to
ensure that a defendant is tried by a jury which is as fair and

7. The parties each discuss the issue of whether voir dire is a
critical stage of trial at which a defendant has a right to be
present and whether this right was waived here. We do not
reach those questions because we resolve Martinez-Castellanos’
appeal on other grounds.

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 State v. Martinez-Castellanos

impartial as possible under the circumstances, given the makeup
of the venire.

¶37 The Idaho Supreme Court has explained the importance
of the defendant’s presence during the voir dire process:

The defendant may wish to challenge a particular
prospective juror for any one of several valid
reasons, one of which may be a negative visceral
reaction. That is his long recognized privilege and
one which is important to the trial process. In
Snyder v. Commonwealth of Massachusetts, 291 U.S.
97 (1934), the general test for determining when a
defendant’s personal presence is required is stated
as follows:
[W]henever his presence has a relation,
reasonably substantial, to the fullness of his
opportunity to defend against the charge.
Again, defense may be made easier if the
accused is permitted to be present at the
examination of jurors or the summing up of
counsel, for it will be in his power, if
present, to give advice or suggestion or even
to supersede his lawyers altogether and
conduct the trial himself.
We add that an important aspect of any trial is its
openness and fairness. The purpose of having an
accused present is to insure that he has first hand
knowledge of the actions taken which lead to the
eventual outcome of the trial and particularly that
he knows how the jurors who decide the facts were
selected. Where part of the court proceedings are
held outside his presence, an accused will
automatically be suspicious.

State v. Carver, 496 P.2d 676, 679 (Idaho 1972) (ellipses and
citation omitted).

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 State v. Martinez-Castellanos

¶38 Thus, it was important for Martinez-Castellanos to at least
have the opportunity to be present at and participate in the jury
selection process. See Hubbard, 2002 UT 45, ¶ 33 n.7; see also
Gomez, 490 U.S. at 873 (“Jury selection is the primary means by
which a court may enforce a defendant’s right to be tried by a
jury free from ethnic, racial, or political prejudice, or
predisposition about the defendant’s culpability.” (citations
omitted)). But while he was present for the initial questioning of
prospective jurors in open court, he was not present in chambers
for nearly an hour of follow-up questioning by the court and
counsel.

¶39 Critically, the questioning of these prospective jurors in
chambers revealed significant information about three members
of the jury venire who later served as jurors in the case. As a
consequence, Martinez-Castellanos did not have the opportunity
to appropriately consult with trial counsel during what was the
heart of the juror-selection process of his criminal trial, i.e., the
almost one-hour, in-chambers questioning of individual venire
members where potential bias and prejudice may have been
unearthed.

¶40 The problem appears to have gone further than the
defendant’s absence from the in-chambers voir dire. Trial
counsel stated, “I do not recall that I had any conversations with
my client about any part of the jury selection process. He was
not in chambers and not involved in the process.” Based on trial
counsel’s own statements, then, Martinez-Castellanos was “not
involved in the process.” 8

8. The State asserts that “[t]hese statements do not prove that
[Martinez-Castellanos] was not invited to participate and had no
notice of his right to attend the in-chambers questioning.”
(Internal quotation marks omitted.) Instead, the State argues
that, “[t]rial counsel’s inability to recall discussing whether
(continued…)

20130432-CA 19 2017 UT App 13
 State v. Martinez-Castellanos

¶41 “An attorney undoubtedly has a duty to consult with the
client regarding ‘important decisions,’ including questions of
overarching defense strategy.” Florida v. Nixon, 543 U.S. 175, 187
(2004) (quoting Strickland v. Washington, 466 U.S. 668, 688 (1984)).
“Counsel’s function is to assist the defendant,” and from this
function “derive[s] the overarching duty to advocate the
defendant’s cause and the more particular duties to consult with
the defendant on important decisions and to keep the defendant
informed of important developments in the course of
prosecution.” Strickland, 466 U.S. at 688 (emphasis added). As we
have discussed, one of the most important decisions in any jury
trial is the selection of the jury. The questioning of jurors about
their associations, backgrounds, and experience is central to the
determination of whether individual jurors harbor any attitude
or bias that could affect their ability to act fairly in a case.

¶42 Here, the trial judge decided to conduct particularly
sensitive aspects of the voir dire process with individual jurors
in chambers where their answers would not be inhibited by the
public setting of the open courtroom. The court intended to
follow up on each venire member’s affirmative answers to

(…continued)
[Martinez-Castellanos] wished to be present during the in-
chambers questioning does not establish that such discussions
did not happen.” Trial counsel’s statement from his affidavit,
while couched in the language of an exercise of memory, did not
say that he did not remember what happened at all, implying
that he just cannot say whether he consulted with Martinez-
Castellanos or not. Rather, his statement is more reasonably read
to say that he had a memory of the events which did not include
any discussion with Martinez-Castellanos. And given the nature
of his representation with respect to the motion to suppress, we
are reluctant to interpret any lingering ambiguity in this
statement in the way the State suggests.

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 State v. Martinez-Castellanos

questions important to the prospective juror’s ability to be fair
and impartial in this particular case, such as prior experience as
a crime victim, involvement with similar crimes, and prior
association with law enforcement. The nature of a potential
juror’s answers to such questions—both in terms of substance
and demeanor—is crucial to the determination of whether to
challenge a particular venire member for cause or later eliminate
him or her through the exercise of a preemptory strike.
Admittedly, this sort of judgment is generally most informed by
the experience and wisdom of counsel. But the importance of a
defendant’s ability to consult with counsel during such a process
and the effect on the defendant’s own perception of whether the
process has been fair cannot be discounted. Strickland, 466 U.S. at
688 (“From counsel’s function as assistant to the defendant
derive the overarching duty to advocate the defendant’s cause
and the more particular duties to consult with the defendant on
important decisions and to keep the defendant informed of
important developments in the course of the prosecution.”). This
is especially true when statements by individual venire members
during individual questioning raise concerns about their ability
to sit as jurors in a case, as happened here. Cf. State v. Calliham,
2002 UT 86, ¶ 49, 55 P.3d 573 (“When a potential juror makes
statements that raise a question about her ability to be impartial,
the trial court must either excuse her or further question
her . . . and determine whether she could act impartially.”
(citation and internal quotation marks omitted)).

¶43 The trial court invited thirteen prospective jurors into
chambers where trial counsel, the prosecution, and the court had
the opportunity to question each of them individually for the
purpose of privately discussing any of their affirmative answers
to questions that may have had an effect on their ability to act
impartially. At least three of those who later decided Martinez-
Castellanos’ guilt revealed information in chambers—but out of
eyesight and earshot of Martinez-Castellanos—that raise
significant concerns about partiality.

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 State v. Martinez-Castellanos

¶44 For instance, Juror Two indicated in chambers that she
was against drugs, that her son had once been prosecuted for
drugs, and that if a person had drugs in the car, that person was
probably guilty. Likewise, Juror One revealed important
information for the first time in chambers that he did not
disclose on his juror questionnaire or during the general
questioning in open court. 9 Thus, Martinez-Castellanos never
learned that Juror One was a retired Utah Highway Patrol
trooper and former drug interdiction supervisor with decades of
experience performing work much like that at issue here.
Additional in-chambers questioning uncovered that Juror One
knew the trooper—the State’s only witness—in a professional
capacity at one point. Finally, Juror Six raised substantial
concerns when, according to trial counsel, she appeared
reluctant to disclose her thoughts and when she expressed
“reservations about her ability to function as a juror.” Although
she went on to say that she understood what the judge wanted
and believed she could serve as a juror, her contradictory
statements could not have dispelled concern of bias on their
own. See State v. Saunders, 1999 UT 59, ¶ 35, 992 P.2d 951

9. On his questionnaire, Juror One provided only the following
responses:
Question: “Where do you work and what is your
job title?”
Answer: “Retired”
Question: “In what business or occupation have
you spent the longest period?”
Answer: [left blank]
Question: “Have you, any member of your family,
or a close friend ever been employed by any law
enforcement agency?”
Answer: “yes”

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 State v. Martinez-Castellanos

(explaining that “[r]uling that a prospective juror is qualified to
sit simply because he says he will be fair ignores the common-
sense psychological and legal reality of the situation”).

¶45 And while it seems unlikely that responses such as these
would not prompt further questioning from the judge and
counsel, if not challenges for cause, the reconstructed record
does not disclose any follow-up other than the judge’s simple
inquiry whether each juror could be fair and impartial.

¶46 But even if a more complete record may have mitigated
the concerns regarding each juror’s ability to serve, trial counsel
still failed to ensure that Martinez-Castellanos was able to either
observe this vital process or participate in any meaningful way.
Trial counsel’s concession that he did not have “any
conversations” with Martinez-Castellanos concerning jury
selection and that Martinez-Castellanos was “not involved in the
process” means that he neither advised Martinez-Castellanos
about what had occurred in chambers with respect to the three
venire members of concern nor consulted with him during the
exercise of peremptory challenges. As we have discussed,
“[r]epresentation of a criminal defendant entails certain basic
duties.” Strickland, 466 U.S. at 688. Among them are “to consult
with the defendant on important decisions and to keep the
defendant informed of important developments in the course of
the prosecution.” Id. It seems clear enough that where potential
jurors express concerns implicating impartiality, this information
should not only have been shared with Martinez-Castellanos,
but he should have been afforded the opportunity to consult
with trial counsel and express his opinion, if any, on whether
Juror One, Juror Two, or Juror Six should be empaneled.

¶47 In assessing an ineffective assistance claim, however, we
“must indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance; that
is, the defendant must overcome the presumption that, under
the circumstances, the challenged action might be considered

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 State v. Martinez-Castellanos

sound trial strategy.” Id. at 689 (citation and internal quotation
marks omitted). There might be a good reason for a defendant to
avoid an in-chambers voir dire process; for example, if counsel
judged that the benefits of the client’s presence might be
outweighed by the risk that potential jurors might be put off by
the defendant’s appearance or demeanor. But here trial counsel
gave no such explanation and did not even consult with his
client regarding the decision. And however experienced counsel
may have been, it is difficult to conceive of a plausible reason to
completely isolate Martinez-Castellanos from any consultation
or participation in the grit of the jury selection process; there is
no apparent risk and much to gain in terms of the fairness and
effectiveness of the process.

¶48 In particular, it is difficult to understand why trial counsel
would not have discussed in some detail the concerns raised by
questioning of the three jurors in chambers. Counsel should
have at least consulted with Martinez-Castellanos about his
ability to be present during the chambers voir dire and then,
after it was over, about what had happened there of significance
to the selection of the jury. See Kentucky v. Stincer, 482 U.S. 730,
745 (1987) (explaining that a defendant has a right to be present
during any stage of a criminal proceeding if his presence “has a
relation, reasonably substantial, to the fulness of his opportunity
to defend against the charge” (citation and internal quotation
marks omitted)). Accordingly, we cannot say that “[trial]
counsel’s assistance was reasonable considering all the
circumstances.” Strickland, 466 U.S. at 688. Rather, Martinez-
Castellanos has persuaded us that “the identified acts or
omissions [by his trial counsel] were outside the wide range of
professionally competent assistance.” See id. at 690.

¶49 To prevail on an ineffective assistance of counsel claim,
however, a defendant must also demonstrate prejudice resulting
from deficient performance of counsel. “The benchmark for
judging any claim of ineffectiveness must be whether counsel’s
conduct so undermined the proper functioning of the adversarial

20130432-CA 24 2017 UT App 13
 State v. Martinez-Castellanos

process that the trial cannot be relied on as having produced a
just result.” Id. at 686. In other words, “[t]he defendant must
show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. at 694.

¶50 Here, the service of Juror One, Juror Two, and Juror Six
raises concerns. The State charged Martinez-Castellanos with
several offenses, including two felony offenses for possession of
methamphetamine and hydrocodone. Martinez-Castellanos
denied possession of those items. He testified that he purchased
the car prior to making the trip to Utah, that the car was already
cluttered with items when he purchased it, and that he did not
have time to clean it. Whether Martinez-Castellanos actually
possessed the methamphetamine and hydrocodone in the car
was therefore a central issue for the jury. Juror One had been
involved in decades of highway patrol work involving just the
sort of case he would decide as a juror, and he had previously
worked with the State’s only witness. Juror Six had raised
questions about her state of mind and ability to serve as a juror
when she indicated that she was reluctant to disclose what was
going on in her own mind and that concern was more
exacerbated than dispelled by her response that she had
reservations about her ability to function as a juror, but that she
understood what the judge wanted and believed she could serve
as a juror. And Juror Two revealed a strong indication of bias
related to the case against Martinez-Castellanos when she
indicated that she thought that, if a person had drugs in the car,
that person was probably guilty.

¶51 Despite the obvious questions about the impartiality of
these three jurors, it is difficult to know with any confidence
how trial counsel’s failure to include Martinez-Castellanos in the
jury selection process actually affected the trial. Martinez-
Castellanos might have had much to add to the process of jury
selection through his observations and impressions of individual

20130432-CA 25 2017 UT App 13
 State v. Martinez-Castellanos

jurors or he might have said nothing of any substance. One or
more of the three prospective jurors who raise concerns might
have been eliminated, at least by peremptory challenge, or none
of them, depending on the interplay of Martinez-Castellanos’
own impressions and trial counsel’s judgment and experience-
based advice. But that is the precise problem with an omission
like this—while the failure to have the defendant present during
crucial voir dire or to consult with him at all during jury
selection is troubling, it is difficult, if not impossible, to identify a
resulting harm with any precision, unless it can be concluded
that a biased juror actually sat. See State v. King, 2008 UT 54, ¶ 28,
190 P.3d 1283 (“A defendant who is convicted of a crime by a
jury comprised of even one member who has exhibited actual
bias is entitled to a new trial.” (citing United States v. Martinez-
Salazar, 528 U.S. 304, 316 (2000))).

¶52 The State contends that concluding Martinez-Castellanos
was prejudiced is legally elusive in this case due to
presumptions that apply to the adequacy of the record and to
counsel’s decision-making during jury selection: “[T]he record
does not rebut the presumption that [trial counsel] adequately
advised [Martinez-Castellanos] of his right to participate in the
in-chambers questioning and that [Martinez-Castellanos] waived
that right. Nor does it rebut the strong presumption that [trial
counsel]’s jury selection decisions were strategic.”

¶53 Certainly “[t]he simple fact that a potential juror may
have ties to law enforcement” or may have a family member
who “has been the victim of a similar crime” does not
unequivocally establish bias. State v. Alfatlawi, 2006 UT App 511,
¶ 22, 153 P.3d 804. But Juror One’s decades-long experience in
exactly the type of traffic stop and investigation that occurred
here, together with his professional association with the State’s
only witness, raise significant questions about partiality, as does
Juror Two’s statement that she thought a person found with
drugs in his car (as was Martinez-Castellanos) was probably
guilty. And Juror Six’s reluctance to disclose her mental state in

20130432-CA 26 2017 UT App 13
 State v. Martinez-Castellanos

the face of her reservations about her ability to function as a
juror, while not directly indicating bias, nonetheless raises
serious concerns. Court and counsel are required to follow up on
such concerns with further questions, see State v. Wach, 2001 UT
35, ¶ 29, 24 P.3d 948 (explaining that when, “a question of
potential bias arises,” then “the court or counsel must investigate
further to determine if the juror can be impartial”), but the
reconstructed record describes no follow-up at all, other than a
statement that the trial court asked each voir dire member
questioned in chambers if he or she could be fair and impartial,
presumably followed by an affirmative response, cf. State v.
Hewitt, 689 P.2d 22, 26 (Utah 1984) (“A statement made by a
prospective juror that he intends to be fair and impartial loses its
meaning in light of other testimony or facts that suggest a
bias.”).

¶54 On the face of the reconstructed record of the in-chambers
voir dire, it is difficult to understand why trial counsel failed to
challenge any of the three jurors for cause or at least eliminate
them from the jury through peremptory challenges. 10 But, as the
State points out, “[i]n the absence of an adequate record on
appeal, this [c]ourt can only assume the regularity of the

10. In his affidavit, trial counsel recalled that he did not object to
Juror One serving on the jury “because he had been a supervisor
on highway patrol when I was a district attorney for Juab
County. I knew he had done a lot of work on freeway stops and I
thought he would hear the evidence of how this stop occurred
and know that it was not proper.” But the legality of the traffic
stop was not a question for the jury and, in any event, counsel
apparently did not share this information with Martinez-
Castellanos, who may have had a very different view of Juror
One’s suitability as a jury member in his case. And the trial court
had sufficient concern about Juror One’s service as a juror that
the court raised the issue sua sponte, albeit after trial.

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 State v. Martinez-Castellanos

proceedings below.” State v. Wetzel, 868 P.2d 64, 67 (Utah 1993);
see also State v. Pritchett, 2003 UT 24, ¶ 13, 69 P.3d 1278 (“When
crucial matters are not included in the record, the missing
portions are presumed to support the action of the trial court.”
(citation and internal quotation marks omitted)). Further,
“[w]here the record appears inadequate in any fashion,
ambiguities or deficiencies resulting therefrom simply will be
construed in favor of a finding that counsel performed
effectively.” State v. Litherland, 2000 UT 76, ¶ 17, 12 P.3d 92. 11
Consequently, we must assume that “the court or counsel” made
an effective effort “to determine if the juror can be impartial
despite the past experience.” Wach, 2001 UT 35, ¶ 29.

¶55 Yet another presumption applies to the ultimate choices
made by counsel during jury selection, which focuses ostensibly
on counsel’s performance but ultimately suggests the difficulty

11. We have recognized that “the district court shares in the
responsibility to ensure that an adequate record is made.” State
v. Prawitt, 2011 UT App 261, ¶ 8, 262 P.3d 1203. “However, the
ultimate burden is on a defendant to make certain that the
record he compiles will adequately preserve his arguments for
review.” Id. (citation and internal quotation marks omitted). As a
consequence, these presumptions apply even if the trial court
was originally responsible for the inadequacy of the record. See,
e.g., State v. Pritchett, 2003 UT 24, ¶ 13, 69 P.3d 1278 (recognizing
that there was no record of a bench conference prior to the trial
court’s “overruling of defense counsel’s objections,” but that
“when an appellant fails to provide an adequate record on
appeal, [the appellate court will] presume the regularity of the
proceedings below”); State v. Wetzel, 868 P.2d 64, 67 (Utah 1993)
(explaining that in absence of record of how defendant used
peremptory challenges to remove jurors challenged on appeal,
the appellate court “can only assume the regularity of the
proceedings below”).

20130432-CA 28 2017 UT App 13
 State v. Martinez-Castellanos

of identifying prejudice arising from a jury selection decision. Cf.
Rosales-Lopez v. United States, 451 U.S. 182, 188 (1981) (plurality
opinion) (“Despite its importance, the adequacy of voir dire is
not easily subject to appellate review.”). “[T]he selection of a jury
is inevitably a call upon experience and intuition. The trial
lawyer must draw upon his own insights and empathetic
abilities. Written records give us only shadows for measuring
the quality of such efforts.” State v. Cosey, 873 P.2d 1177, 1179
(Utah Ct. App. 1994) (citation and internal quotation marks
omitted). Our supreme court has stated that applying the
Strickland presumptions favoring competent representation
during jury selection—i.e., that counsel did no harm in jury
selection—is “appropriate . . . in large part because jury selection
is more art than science,” Litherland, 2000 UT 76, ¶ 21, where
attorneys may “act[] on their own intuitions,” id. ¶ 23, making
decisions about prospective jurors that “may even appear
counterintuitive . . . when viewed from the perspective of a bare
transcript on appeal,” id. ¶ 22. This is because “[t]here are a
multitude of inherently subjective factors typically constituting
the sum and substance of an attorney’s judgments about
prospective jurors,” including subjectively evaluating a
prospective juror’s “demeanor, interaction with others in the
courtroom, and personality.” Id. ¶ 21. Therefore, “it follows that
the decision not to remove a particular juror need only be
plausibly justifiable, and such plausible justifiability is ordinarily
presumed.” Id. ¶ 25. But when there is not even a bare transcript,
and the regularity of proceedings must be assumed, the task of
overcoming the presumptions attendant on counsel’s decisions
in selecting a jury becomes nearly impossible. Cf. State v.
Tennyson, 850 P.2d 461, 467 (Utah Ct. App. 1993) (“[O]ur review
of counsel’s performance in the present case is inherently
hampered by our necessary reliance on only the lifeless
transcript to assess the dynamic and highly judgmental process
of jury selection.”).

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 State v. Martinez-Castellanos

¶56 As a natural consequence of these presumptions, the
question of whether counsel provided ineffective assistance of
counsel during jury selection is narrowly focused:

The defendant may rebut the presumption [of
effective assistance of counsel in jury selection] by
showing: (1) that defense counsel was so
inattentive or indifferent during the jury selection
process that the failure to remove a prospective
juror was not the product of a conscious choice or
preference; (2) that a prospective juror expressed
bias so strong or unequivocal that no plausible
countervailing subjective preference could justify
failure to remove that juror; or (3) that there is
some other specific evidence clearly demonstrating
that counsel’s choice was not plausibly justifiable.

Litherland, 2000 UT 76, ¶ 25 (footnote omitted).

¶57 The sparse record here, and the presumptions attendant
on the inadequacy of that record, do not permit us to conclude
that trial counsel was “inattentive or indifferent during the jury
selection process.” See id. Litherland’s second consideration
focuses on the result, essentially asking whether an actually
biased juror sat in judgment. See id.; see also State v. King, 2008 UT
54, ¶ 47, 190 P.3d 1283 (concluding that a defendant “must show
that his counsel’s actions prejudiced him because those actions
allowed the seating of an actually biased juror”).

¶58 Although there are serious questions regarding the
impartiality of three of the jurors, the applicable presumptions—
favoring the regularity of proceedings in the face of an
inadequate record and supporting the wisdom of counsel’s jury
selection decisions—mean that we must assume that, despite the
paucity of the reconstructed record of the in-chambers voir dire,
further questioning of the three jurors whose voir dire
statements raised concern adequately dispelled any questions

20130432-CA 30 2017 UT App 13
 State v. Martinez-Castellanos

about their ability to be impartial in this case. In other words, the
limited record in this case permits no more than speculation that
a juror with actual bias may have sat in judgment. And, as the
State contends, that is not enough. Nor, for essentially the same
reasons, is there “specific evidence clearly demonstrating that
counsel’s choice” of jurors “was not plausibly justifiable.”
Litherland, 2000 UT 76, ¶ 25.

¶59 Nevertheless, what the reconstructed record includes and
leaves out still raises concerns about juror impartiality that
remain unresolved factually, if not legally. In particular, no one
involved in reconstructing the record mentioned any attempt to
clarify the three jurors’ troubling responses other than the
judge’s simple query whether the juror “could be fair and
impartial.” As we have discussed, the presumptions about
counsel’s decisions in jury selection and in favor of the regularity
of proceedings and effective performance by counsel in the face
of an insufficient record support a conclusion that the court and
counsel followed up appropriately with the three jurors and
resolved any questions about their ability to sit in judgment in
this case. State v. Theison, 709 P.2d 307, 309 (Utah 1985) (per
curiam) (“When crucial matters are not included in the record,
the missing portions are presumed to support the action of the
trial court. Therefore, we presume the trial court acted
correctly . . . .” (citations omitted)); see also State v. Tunzi, 2000 UT
38, ¶ 3, 998 P.2d 816 (recognizing that “attempts to reconstruct
major portions of records often prove to be futile because such
reconstructions often fail to provide the detail necessary to
resolve the issues on appeal”).

¶60 But while such presumptions may support a theoretical
conclusion that no harm resulted from this process—that no
biased juror was actually seated—it is a particularly
unsatisfactory result where the foundation for that conclusion is
one presumption layered on another and where the trial judge
himself had lingering concerns about at least one of the three
jurors, which caused him to sua sponte raise the issue after trial.

20130432-CA 31 2017 UT App 13
 State v. Martinez-Castellanos

And it is all the more troubling when the crucial events occurred
without Martinez-Castellanos’ involvement, the person most
interested in the effective functioning of the jury selection
process. See Faretta v. California, 422 U.S. 806, 819–20 (1975) (“The
right to defend is given directly to the accused; for it is he who
suffers the consequences if the defense fails.”). Nevertheless we
reluctantly conclude that, on this record, Martinez-Castellanos
cannot show that “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland v. Washington, 466 U.S.
668, 694 (1984).

II. The Motion to Suppress

¶61 Martinez-Castellanos next argues that he “was deprived
of the effective assistance of counsel when [trial counsel] failed
to file a proper motion to suppress evidence seized during an
unlawfully extended traffic stop.” Martinez-Castellanos asserts
that, because trial counsel “was ineffective for failing to make
proper and meritorious arguments to suppress the evidence,”
his counsel’s “deficient performance resulted in prejudice
because there [was] a reasonable likelihood that the district court
would have given the issue proper consideration in Martinez-
Castellanos’ favor if counsel had presented the arguments.” As
we have discussed, to demonstrate ineffective assistance of
counsel Martinez-Castellanos must meet both Strickland
elements—deficient performance of counsel and prejudice.
Strickland v. Washington, 466 U.S. 668, 687 (1984).

¶62 Normally, when failure to litigate a Fourth Amendment
claim competently is the principal allegation of ineffectiveness,
“the defendant must also prove that his Fourth Amendment
claim is meritorious and that there is a reasonable probability
that the verdict would have been different absent the excludable
evidence in order to demonstrate actual prejudice.” Kimmelman
v. Morrison, 477 U.S. 365, 375 (1986). But we conclude that the
representation of Martinez-Castellanos in connection with the

20130432-CA 32 2017 UT App 13
 State v. Martinez-Castellanos

motion to suppress was so deficient that he was effectively
unrepresented during this important phase of district court
proceedings, leaving us with little confidence in the outcome. Cf.
Strickland, 466 U.S. at 686 (describing the “benchmark” of an
ineffective assistance of counsel claim as “whether counsel’s
conduct so undermined the proper functioning of the adversarial
process that the trial cannot be relied on as having produced a
just result”).

¶63 It is a “bedrock principle that a competent criminal
defense lawyer must put the prosecution to its proof” and
therefore has a “duty to be a zealous advocate.” Melendez-Diaz v.
Massachusetts, 557 U.S. 305, 353 (2009). The United States
Supreme Court has stated,

The adversarial process protected by the Sixth
Amendment requires that the accused have
counsel acting in the role of an advocate. The right
to the effective assistance of counsel is thus the
right of the accused to require the prosecution’s
case to survive the crucible of meaningful
adversarial testing. When a true adversarial
criminal trial has been conducted[,] the kind of
testing envisioned by the Sixth Amendment has
occurred. But if the process loses its character as a
confrontation between adversaries, the
constitutional guarantee is violated.

Id. (alteration, ellipsis, citations, and internal quotation marks
omitted). Here, the proceedings surrounding the motion to
suppress did not amount to an effective adversarial process.

¶64 It is clear from the record that trial counsel failed to make
any argument in support of the motion to suppress. Trial
counsel filed a motion to suppress but did not submit a
memorandum supporting his position. And even after
requesting and receiving several continuances—extending over

20130432-CA 33 2017 UT App 13
 State v. Martinez-Castellanos

a three-month period—to enable him to “submit a brief on the
matter,” counsel ultimately failed to file any supporting
memorandum at all. The prosecution finally submitted its own
memorandum opposing the motion, but trial counsel filed no
response advocating Martinez-Castellanos’ position, so the
prosecution’s arguments went unanswered. Having heard
nothing from trial counsel after multiple continuances, the
district court eventually denied the motion to suppress without
the benefit of any legal or factual argument on Martinez-
Castellanos’ behalf.

¶65 Trial counsel then moved to set aside that order and again
asked for more time to file a supporting memorandum. The
court granted the motion and set aside its order. But, again, trial
counsel failed to submit a supporting memorandum. At the time
of trial and after trial, counsel filed additional motions asking the
court to suppress the evidence from the traffic stop, also without
supporting memoranda, simply claiming in conclusory fashion
that testimony from the trial warranted the court’s
reconsideration. The prosecution opposed the motions as
untimely and deficient under the Rules of Criminal Procedure,
and the trial court denied them, just as it had the original motion
to suppress. The court took notice of these glaring inactions by
trial counsel, stating,

[T]he court may not have had sufficient
information prior to trial, and now having gone
through the trial and understanding what the
evidence is[,] could see that there was a kernel of a
concern. There was some level of concern that had
it been followed up with earlier, may have had a
significant outcome on the case.

These concerns led to the court’s “sua sponte consideration of
granting defendant a new trial.” See Utah R. Crim. P. 24(a).

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 State v. Martinez-Castellanos

¶66 Thus, while trial counsel managed to identify a legitimate
issue and draw it to the court’s attention, he failed to follow
through and “put the prosecution to its proof,” thereby failing to
fulfill the most basic and essential duty of competent counsel—
to use his experience, training, and expertise to advocate his
client’s position in a crucial aspect of the defense. Melendez-Diaz
v. Massachusetts, 557 U.S. 305, 353 (2009) (recognizing that the
Sixth Amendment “require[s] the prosecution’s case to survive
the crucible of meaningful adversarial testing” (citation and
internal quotation marks omitted)); Strickland v. Washington, 466
U.S. 668, 688 (1984) (stating that counsel has a duty “to bring to
bear such skill and knowledge as will render the trial a reliable
adversarial process”).

¶67 That counsel recognized the suppression issue was
important is demonstrated by his repeated efforts, unfocused
and unsustained though they were, to get the motion before the
court. And his repeated requests for additional time to brief the
issue showed that he understood the importance to his client of
his role as a professional advocate. But counsel abdicated that
role by never filing any analytical support for the motion to
suppress. The trial court clearly recognized the problem in its
sua sponte motion for a new trial, which expressed concern not
only about aspects of the jury selection, but also recognized that
Martinez-Castellanos may have been ineffectively represented in
connection with the suppression motion. The court’s concern
manifested in its decision to appoint conflict counsel to represent
Martinez-Castellanos in post-trial proceedings focused on trial
counsel’s “failure to file any memorandum following an
evidentiary hearing on [Martinez-Castellanos’] motion to
suppress.” It is abundantly clear that the “acts or omissions” of
trial counsel “were outside the wide range of professionally
competent assistance” and therefore amounted to deficient
performance. See Strickland, 466 U.S. at 690.

¶68 The trial court recognized the deficiency in trial counsel’s
performance regarding the motion to suppress and sought to

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address it by its sua sponte post-trial motion and subsequent
appointment of conflict counsel to represent Martinez-
Castellanos. Martinez-Castellanos argues, however, that in
connection with this appointment the trial court erred by “failing
to ensure that [he] had the effective assistance of counsel at all
stages of the proceedings, including during post-trial
proceedings.” Because Martinez-Castellanos did not preserve
this argument, he seeks review under the plain error doctrine.
State v. Floyd, 2014 UT App 53, ¶ 6, 321 P.3d 1170 (“Appellate
courts generally will not consider an issue raised for the first
time on appeal absent plain error, exceptional circumstances, or
ineffective assistance of counsel.”). To succeed on a claim of
plain error, a defendant must establish that “(i) [a]n error exists;
(ii) the error should have been obvious to the trial court; and (iii)
the error is harmful.” State v. Dunn, 850 P.2d 1201, 1208 (Utah
1993).

¶69 Martinez-Castellanos contends that, “[w]hile the court
should be commended for its part in recognizing and calling for
post-trial proceedings to address ineffective assistance, it erred
when it failed to appoint conflict counsel to represent [him] in a
meaningful way.” Rather, “the court simply appointed an
attorney as amicus to address one distinct issue for the court.”
After trial, the district court sua sponte raised two issues of
possible ineffective representation by trial counsel. One involved
a particular juror, as we have discussed above, and the other was
trial counsel’s failure to “file any memorandum following an
evidentiary hearing on defendant’s motion to suppress.” The
court “appoint[ed] conflict counsel for purposes of [its] sua
sponte motion” to assess ineffective assistance of counsel
regarding whether the trooper had any justification for
extending the stop. The court noted that it had a “kernel of a
concern” that trial counsel failed to follow up with proper
suppression arguments that “may have had a significant
outcome on the case.”

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 State v. Martinez-Castellanos

¶70 Conflict counsel filed what he titled an “Amicus Brief.” In
his brief, conflict counsel stated that the issue was: “Whether
Defendant’s failure to file a legal memorandum in support of his
Motion to Suppress rises to the level of ineffective assistance of
counsel.” The brief explained that trial counsel’s failure to file a
memorandum supporting the motion to suppress was not
prejudicial because, once counsel moved to suppress, the
prosecution bore the burden to prove that the search was lawful.
Conflict counsel further noted that the district court denied the
suppression motion on the merits, not merely because trial
counsel failed to file a supporting memorandum:

It stand[s] to reason . . . that [trial counsel’s] failure
to file a legal memorandum could [not] satisfy the
second prong of the Strickland test[,] . . . because
implicit in the Court’s denial of [the] Motion to
Suppress, with or without legal memorandum, is a
finding and conclusion of law that the State met its
burden in establishing that the evidence was
obtained legally.

After receiving conflict counsel’s Amicus Brief, the district court
withdrew its sua sponte notice regarding the ineffective
assistance of counsel issues. The court went on to explain that,
although it was initially concerned with trial counsel’s “failure to
file a memorandum” supporting the suppression motion, it was
satisfied that the lack of a memorandum did not amount to
ineffective assistance of counsel for the reasons conflict counsel
provided.

¶71 It is apparent that, although the trial court purported to
appoint conflict counsel to represent Martinez-Castellanos in
post-trial proceedings regarding the motion to suppress, conflict
counsel did no such thing. Rather than advocating on Martinez-
Castellanos’ behalf, conflict counsel merely sought to reassure
the court of the legitimacy of its decision to deny the motion to
suppress. Conflict counsel asserted that trial counsel’s failure to

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 State v. Martinez-Castellanos

brief the suppression issue could not meet the Strickland
standard for ineffective assistance because no harm resulted.
Conflict counsel based this conclusion on the circular reasoning
that once the motion was filed, the burden shifted to the State to
prove that the evidence was legally obtained, and the trial court
had already decided that the State had met that burden when it
decided the issue in the State’s favor on the merits. In other
words, because the court had decided the motion against the
Martinez-Castellanos, it must have lacked merit in the first place
and, as a consequence, trial counsel’s failure to file a
memorandum arguing Martinez-Castellanos’ position was
harmless.

¶72 While this argument is logically flawed because it appears
to assume the conclusion as a premise, the real problem is that,
while ostensibly appointed as counsel in the place of Martinez-
Castellanos’ trial counsel, conflict counsel did not represent
Martinez-Castellanos at all. Rather, he acted as a self-appointed
amicus curiae—a friend of the court—and took a position
contrary to his client’s interest in reassuring the court that its
decision to deny the motion to suppress was correct. As a result,
Martinez-Castellanos was not only without representation at this
stage of the proceedings, his appointed attorney also worked
against him.

¶73 A defendant is entitled to be represented at all stages of
trial by conflict-free counsel who zealously advocates in his or
her client’s interest. See Webster v. Jones, 587 P.2d 528, 530 (Utah
1978) (“[W]here a person is charged with an offense which may
be punished by imprisonment, he is entitled to the assistance of
counsel.”). But rather than resolve a conflict of interest between
Martinez-Castellanos and his trial counsel, the court’s well-
intentioned decision to appoint conflict counsel compounded the
failure of representation that Martinez-Castellanos had
experienced throughout the whole motion to suppress process.
Indeed, once the trial court received the Amicus Brief that did
not advocate for him, Martinez-Castellanos had been left

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 State v. Martinez-Castellanos

unrepresented during the post-trial process, just as he had been
unrepresented as a practical matter during the suppression
motion. Thus, Martinez-Castellanos has demonstrated that the
trial court erred and that the error was obvious.

¶74 Ordinarily, Martinez-Castellanos would also need to
“prove that his Fourth Amendment claim is meritorious and that
there is a reasonable probability that the verdict would have
been different absent the excludable evidence in order to
demonstrate actual prejudice.” Kimmelman v. Morrison, 477 U.S.
365, 375 (1986). And on appeal, Martinez-Castellanos asserts that
there is a “reasonable likelihood that a proper motion would
have resulted in suppression of the evidence” because, under
“the totality of the circumstances,” there “is insufficient
[evidence] to support reasonable suspicion for the extended
detention.”

[The trooper] articulated two points for the
extended detention [following the traffic stop]:
Martinez-Castellanos’ “rapid” manner and his 3-
year-old criminal history. Notably, and over the
course of the proceedings, the trooper changed his
testimony as it related to those points. Specifically,
the video of the traffic stop supports nothing
unusual about Martinez-Castellanos’ mannerisms
and the trooper admitted that Martinez-
Castellanos may have behaved his “normal way.”
Also, the 3-year-old history was stale.

¶75 Martinez-Castellanos asserts that “[i]f the district court
had been allowed to assess those issues, there is a reasonable
likelihood that the court would have made findings to support
Martinez-Castellanos’ motion to suppress the evidence, thereby
leading to a different result.” The State responds that “none of
the additional arguments” advanced by Martinez-Castellanos on
appeal “would have persuaded the trial court to grant a motion
to suppress” because he “has not shown that [the trooper] lacked

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 State v. Martinez-Castellanos

a reasonable and articulable suspicion to briefly detain him to
conduct field sobriety tests.”

¶76 The arguments of both parties appear to have some merit,
and we would ordinarily go on to resolve the issue based on the
facts in the record. But the concerns we have raised about the
representation that Martinez-Castellanos received during the
motion to suppress—essentially the entire absence of
representation—make us reluctant to resolve the issue here,
particularly because it was so poorly developed in the trial court.
Moreover, the merits of the issue do not so clearly favor either
side that we are persuaded that additional proceedings with
competent counsel actually representing Martinez-Castellanos
could not have a material impact on the result. The trial court
itself raised questions about the potential significance of the
trooper’s trial testimony on its earlier decision to deny the
motion to suppress, and that question was never addressed on
the merits below. Rather, Martinez-Castellanos was denied the
effective assistance of counsel throughout the suppression
motion process (and was not represented at all during the post-
trial proceedings on the issue), with the result that a plausible
motion to suppress, potentially affected by unexplored
developments during the trial itself, was resolved against him in
an essentially one-sided proceeding. In sum, there was no
adversarial process during this portion of the trial.

III. Cumulative Error

¶77 As Strickland acknowledges, the purpose of the effective
assistance guarantee in the Sixth Amendment “is simply to
ensure that criminal defendants receive a fair trial.” Strickland v.
Washington, 466 U.S. 668, 689 (1984). Thus, “the ultimate focus of
inquiry must be on the fundamental fairness of the proceeding
whose result is being challenged.” Id. at 696. Martinez-
Castellanos has demonstrated that his trial counsel performed
deficiently during jury selection and in the proceedings on the
motion to suppress. In addition, he has shown that he was not

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 State v. Martinez-Castellanos

represented at all during the post-trial proceeding on the motion
to suppress, where conflict counsel in effect advocated against
him.

¶78 However, we have not been able to conclude that
Martinez-Castellanos has demonstrated the necessary prejudice
to be entitled to relief on the grounds of ineffective assistance of
counsel or plain error. Nevertheless, we have expressed our
deep concerns in this regard about the weakness of the
foundation—based almost entirely on layered legal
presumptions—for our determination that Martinez-Castellanos
could not show harm from trial counsel’s deficient performance
in the jury selection context. Cf. State v. Ison, 2006 UT 26, ¶ 37,
135 P.3d 864 (explaining that it places “too much strain on the
interests of justice” to presume “both that a record of the events
surrounding the jury question exists and that [the defendant’s]
failure to include this portion of the record on appeal requires
[the court] to infer that no error occurred”). We have expressed
serious concerns, as well, about what essentially amounts to a
denial of counsel in the connection with the motion to suppress
and our consequent reluctance to resolve the suppression issue
without further proceedings in the trial court.

¶79 As a result of the “cumulative effect of the several errors,”
our confidence that Martinez-Castellanos received a fair trial is
seriously undermined. Cf. State v. Dunn, 850 P.2d 1201, 1229
(Utah 1993) (“Under the cumulative error doctrine, we will
reverse only if the cumulative effect of the several errors
undermines our confidence . . . that a fair trial was had.”
(omission in original) (citation and internal quotation marks
omitted)). “Cumulative error refers to a number of errors which
prejudice a defendant’s right to a fair trial.” State v. Ellis, 748 P.2d
188, 191 (Utah 1987) (alteration, citation, and internal quotation
marks omitted). “To evaluate a cumulative error claim, we
consider all the identified errors, as well as any errors we
assume may have occurred.” State v. Jones, 2015 UT 19, ¶ 74, 345
P.3d 1195 (citation and internal quotation marks omitted). “But

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 State v. Martinez-Castellanos

[i]f the claims are found on appeal to not constitute error, or the
errors are found to be so minor as to result in no harm, the
doctrine will not be applied.” State v. Maestas, 2012 UT 46, ¶ 363,
299 P.3d 892 (alteration in original) (citation and internal
quotation marks omitted).

¶80 The errors that Martinez-Castellanos has identified on
appeal with respect to his trial counsel’s performance regarding
voir dire, together with the serious deficits in representation in
the suppression motion context, reinforce our concerns that
Martinez-Castellanos did not have the assistance of counsel
contemplated by the Sixth Amendment during important stages
of the trial process in the district court. Strickland, 466 U.S. at 684
(recognizing “that the Sixth Amendment right to counsel exists,
and is needed, in order to protect the fundamental right to a fair
trial”). We recognize that “[i]n every case the court should be
concerned with whether, despite the strong presumption of
reliability, the result of the particular proceeding is unreliable
because of a breakdown in the adversarial process that our
system counts on to produce just results.” Id. at 696. We believe
that such a breakdown in the adversarial process happened here.
When we consider together trial counsel’s deficient performance
during voir dire and his complete failure to offer any analytical
support for the motion to suppress, the effective denial of
counsel that occurred in post-trial proceedings, and the trial
court’s own concerns regarding juror bias and the suppression
motion, our confidence that a fair trial occurred here is
significantly shaken. Cf. Dunn, 850 P.2d at 1229. Although we
have reluctantly concluded that no single error met the prejudice
standard of ineffective assistance or plain error, when “we
consider all the identified errors, as well as any errors we
assume may have occurred,” id., our confidence in the fairness of
the trial and its outcome is substantially undermined. Cf. State v.
Campos, 2013 UT App 213, ¶¶ 61, 72, 309 P.3d 1160 (vacating the
defendant’s conviction based on the cumulative prejudicial effect
of trial counsel’s deficient performance).

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 State v. Martinez-Castellanos

CONCLUSION

¶81 Due to the cumulative effect of several errors, our
confidence that Martinez-Castellanos received the assistance of
counsel guaranteed by the Sixth Amendment to the United
States Constitution is undermined. We reverse Martinez-
Castellanos’ convictions and remand the case to the trial court
for a new trial with different counsel.

ORME, Judge (concurring in part and concurring in the result):

¶82 I readily concur in the judgment ultimately reached by my
colleagues, that Martinez-Castellanos is entitled to “a new trial
with different counsel” and an impartial jury. And I concur in
much of what is said in the lead opinion. But the path I take to
the correct result is much more direct and much less guarded
than that preferred by my colleagues. When our ordinary
presumptions and deferential approach are set to one side, as
they should be in this extraordinary case, it is clear that a serious
miscarriage of justice occurred here. And notions of judicial
restraint and deference should not keep us from saying so.

¶83 I have three main areas of disagreement with the lead
opinion. The first one is fairly basic. As explained in the lead
opinion, no record was made of the interviews conducted in
chambers with several of the prospective jurors. Had that gap
remained, it would be appropriate to presume the regularity of
the proceedings of which there was no record and indulge the
presumption that appropriate questions were asked of the jurors
and proper objections raised, discussed, and ruled upon. But
there is no occasion to employ that fiction here. We have a
record of the in-chambers proceedings, albeit one that was
reconstructed in accordance with rule 11(h) of the Utah Rules of
Appellate Procedure rather than a verbatim one made via court

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 State v. Martinez-Castellanos

reporter or a recording. 12 By the express terms of that rule, the
record of that proceeding, as reconstructed by the parties on
appeal, “conform[s] to the truth,” and we should treat it like any
other part of the record. Utah R. App. P. 11(h). Accordingly, the
fact that the supplemental record does not reveal incisive follow-
up questions does not mean that they might have been asked; it
means that they were not. Likewise, the fact that the
reconstructed record includes no hint of challenges for cause
does not mean that they might have been made; it means that
they were not.

¶84 Thus, I do not share my colleagues’ mystification about
what happened in chambers. For purposes of this appeal, we

12. Rule 11(h) provides as follows:
(h) Correction or modification of the record. If any difference
arises as to whether the record truly discloses what
occurred in the trial court, the difference shall be
submitted to and settled by that court and the record made
to conform to the truth. If anything material to either party
is misstated or is omitted from the record by error, by
accident, or because the appellant did not order a
transcript of proceedings that the appellee needs to
respond to issues raised in the Brief of Appellant, the
parties by stipulation, the trial court, or the appellate
court, either before or after the record is transmitted, may
direct that the omission or misstatement be corrected and
if necessary that a supplemental record be certified and
transmitted. The moving party, or the court if it is acting
on its own initiative, shall serve on the parties a statement
of the proposed changes. Within 10 days after service, any
party may serve objections to the proposed changes. All
other questions as to the form and content of the record
shall be presented to the appellate court.
Utah R. App. P. 11(h) (emphasis added).

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 State v. Martinez-Castellanos

know what happened in chambers. Contrary to the tack taken in
paragraphs 12 and 13 of the lead opinion, it is clear from our
record, reconstructed to conform to the truth though it may be,
that no “specific concerns were raised about any particular
venire member” and that none “were actually challenged for
cause. Astonishingly, this is true even with respect to Juror
One—more about him later—a retired veteran of the Utah
Highway Patrol who knew the arresting trooper in this case and
who had himself made many—very many—traffic stops and
drug arrests like the one involved in this case, along the same
stretch of highway in the same county.

¶85 Second, this is not a case for application of the usual
presumption that defense counsel performed diligently and that
any decisions made in the course of preparation and trial were a
function of competent performance and sound tactics on his part.
Counsel’s failure to meet his briefing obligations and otherwise
pursue the motion to suppress, especially with the many
extensions and opportunities he was given, is inexcusable. 13 His
failure to include his client in the jury selection process in any
meaningful way is likewise inexcusable, but his failure to at least
let his client know that Juror One, destined to become the jury
foreperson, was a longtime veteran of the Highway Patrol who
had made it his life’s mission to catch drug runners in Juab
County was nothing short of unprofessional. And counsel’s
explanation that he was anxious to have Juror One remain on
the jury because he figured that, with Juror One’s extensive

13. Defense counsel’s cavalier approach to his briefing
obligations in this case is not aberrational. On the contrary, as the
result of a history of ignoring his briefing obligations, he was
previously barred from practice before the appellate courts of
this state for a period of three years. See State v. Smith, 2010 UT
App 231, ¶¶ 5–6, 238 P.3d 1103 (per curiam).

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 State v. Martinez-Castellanos

background in making similar stops, he would know this one
was illegal, is ridiculous, as is more fully explained below.

¶86 My third concern focuses on Juror One, who is none other
than the legendary Sergeant Paul Mangelson. It is impossible to
understand the magnitude of the problem with his selection as a
juror in this case without knowing his identity. The parties on
appeal recognize this, and in their briefs, which are matters of
public record, they freely disclose his identity as they debate the
propriety of his serving on the jury. And no effort was made in
the proceedings below to hide his identity, which was
understood to be of pivotal concern. Thus, the effort of my
colleagues to preserve juror anonymity, usually entirely
appropriate, is misguided in this case. As counsel and the trial
court perceived, the propriety of Juror One sitting on this jury
cannot be properly evaluated without knowing who Juror One is.

¶87 To be clear, the formidable Sergeant Mangelson was a
very effective warrior on the Utah front of the war on drugs. See
Donald J. Eyre, “Max 25” is Retiring—the End of an Era in Utah
Law Enforcement, 19 Utah Bar J. 33 (July/Aug. 2006), https://www.
utahbar.org/wp-content/uploads/2014/10/2006_july_aug.pdf . He
was involved in at least thirty-three cases, see id. at 35, and who
knows how many stops that never resulted in an arrest, see, e.g.,
Ted Cilwick, ACLU Suit Says 2 Troopers Stop Hispanic Repeatedly,
Salt Lake Tribune, June 12, 1993, at B3 (reporting that Sergeant
Mangelson and another officer allegedly pulled a man over on a
stretch of I-15 between West Valley City and Las Vegas seven
times between 1990 and 1993, resulting in only one warning
citation and one nonconsensual search of the man’s vehicle); that
never went to trial; or that never went up on appeal.

¶88 But contrary to defense counsel’s expressed view,
Sergeant Mangelson was not necessarily an expert on the Fourth
Amendment or well versed in its requirements. See Ted Cilwick,
“Super Cop” Boon or Bust to Drug Fight? “Super Cop” Is Boon to
Drug Fight, but May Be Constitutional Bust, Salt Lake Tribune,

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 State v. Martinez-Castellanos

May 3, 1992, at A1 (quoting Sergeant Mangelson as stating the
following justification for his tactics: “The judges are blind to
what goes on out here . . . . Should we sit here and do nothing?
The majority of people are behind us. They want us to keep
hammering them. If it was up to a lot of people, they’d have us
search all of them.”). And there was no basis in fact for defense
counsel’s expressed belief that Sergeant Mangelson would make
an excellent juror because of his ability to distinguish between
legal stops and illegal ones. Indeed, many of his stops were
determined to be illegal. See United States v. Wald, 216 F.3d 1222,
1224, 1229 (10th Cir. 2000) (holding search of defendant’s trunk,
after Sergeant Mangelson pulled him over for a badly cracked
windshield, was unconstitutional because there was no consent or
probable cause for the search); United States v. Fernandez, 18 F.3d
875–76, 880 (10th Cir. 1994) (concluding detention of defendant
after a lawful stop, where Sergeant Mangelson responded as
back-up, was illegal because the defendant was detained beyond
the time necessary to issue the traffic citation upon which the stop
was premised); United States v. Lyons, 7 F.3d 973, 976 (10th Cir.
1993) (concluding that stop of defendant to assess whether his
weaving between lanes was due to impairment was illegal
because, as Sergeant Mangelson testified, he relied on a “sixth
sense” to determine whether defendant was impaired and cited
only a “withdrawn look” in his eyes as evidence of said
impairment), overruled by United States v. Botero-Ospina, 71 F.3d
783, 786–87 (10th Cir. 1995) (rejecting the pretext stop doctrine
upon which Lyons was based); United States v. Farias, 43 F. Supp.
2d 1276, 1282–85 (D. Utah 1999) (concluding detention of
defendant after a lawful stop was illegal because Sergeant
Mangelson kept defendant longer than necessary while asking
questions unrelated to the alleged reason for the stop in pursuit of
“a hunch”); Sims v. Tax Comm’n, 841 P.2d 6, 8–9 (Utah 1992)
(concluding that a roadblock stop “planned and supervised” by
Sergeant Mangelson, State v. Sims, 808 P.2d 141, 142 (Utah Ct.
App. 1991); see Sims v. Tax Comm’n, 841 P.2d at 8 n.1, “was
unconstitutional under the Utah Constitution” because the

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 State v. Martinez-Castellanos

roadblock was not authorized by statute or based on an
“articulable, individualized suspicion of wrongdoing” but was
planned in advance by Sergeant Mangelson, without exigent
circumstances, for investigatory purposes); State v. Park, 810 P.2d
456, 456–57, 459 (Utah Ct. App. 1991) (per curiam) (concluding a
roadblock stop made by Sergeant Mangelson violated the Fourth
Amendment when the stop was used to pressure defendant for
consent to search the vehicle, and suppressing marijuana
confiscated in a subsequent search); State v. Kitchen, 808 P.2d 1127,
1130–31 (Utah Ct. App. 1991) (concluding a roadblock stop
violated the Fourth Amendment when there was no evidence the
roadblock advanced the public interest and when Sergeant
Mangelson, rather than a neutral body, planned it and also carried
it out, based on guidelines only for the particular roadblock in
question, and absent guidelines to “prevent arbitrary invasions”
of the drivers’ rights) (citation and internal quotation marks
omitted); State v. Arroyo, 770 P.2d 153, 155 (Utah Ct. App. 1989)
(concluding Sergeant Mangelson’s stop of defendant for following
too closely was illegal because it was pretext for a drug search),
rev’d on other grounds, 796 P.2d 684, 692 (Utah 1990); State v. Baird,
763 P.2d 1214, 1217 (Utah Ct. App. 1988) (concluding that
Sergeant Mangelson had no reasonable articulable suspicion to
stop a vehicle that was driving within the speed limit when he
stopped the car because “‘something just struck me funny about
it’”).

¶89 In a case like this one, Sergeant Mangelson’s impartiality
could, to put it mildly, be reasonably questioned, and it was
inexcusable for defense counsel not to have moved that Sergeant
Mangelson be excused for cause, a motion that would have been
granted without the trial judge batting an eye. Indeed,
extraordinary though it is, I would go so far as to say that the
trial court plainly erred in not striking Sergeant Mangelson from
the venire on its own motion, if it came to that, so obvious was
his unsuitability to serve on the jury in this case.

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 State v. Martinez-Castellanos

¶90 On the record before us, defense counsel’s dereliction of
duty violated his client’s Sixth Amendment right to the effective
assistance of counsel. Sergeant Mangelson had no business being
on the jury that convicted Martinez-Castellanos. The prejudice in
this case is so palpable on both scores that Martinez-
Castellanos’s entitlement to a new trial is in no sense a close
question.

ROTH, Judge (response to the concurrence):

¶91 I write separately to make two points in response to Judge
Orme’s concurrence. First, the concurrence as I understand it
reads rule 11 to mean that a reconstructed record is the same as
any other record on appeal because the reconstruction is “made
to conform to the truth.” Utah R. App. P. 11(h). Under that
interpretation, anything not portrayed in the reconstructed
record in effect did not take place, which drastically reduces the
analysis required to dispose of this case. However, I do not
believe the absence of certain details in the reconstructed record
can be taken as proof of their absence from the actual proceeding
or that their absence precludes us from making inferences—in
the form of presumptions—that certain things occurred below
which were not specifically included in the reconstruction.

¶92 Utah law recognizes that records are not always perfectly
complete, and it does not require them to be. E.g., State v.
Gardner, 2007 UT 70, ¶ 26, 167 P.3d 1074 (affirming this court’s
determination that a record with testimonial gaps was
nonetheless complete enough to answer the question presented).
Thus, a record sufficient to afford meaningful review need not
always be a complete record, and this is true regardless of
whether the record is reconstructed or not. One way to
conceptualize this situation is to place all records on appeal
along a scale from nonexistent at worst to complete at best.
Obviously, any record approaching the nonexistent side of the
spectrum cannot sustain an appeal. However, a record sufficient

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for appeal might still contain gaps that prevent it from being
perfectly complete. See id. This reality drives the presumptions of
regularity of proceedings and competent performance of counsel
discussed in the opinion of the court; the presumptions exist
precisely to help appellate courts fill the gaps left by imperfect—
yet sufficient—records. And a record reconstructed under rule
11(h), though “made to conform to the truth,” is not thereby
rendered complete.

¶93 The reconstructed record at issue clearly falls somewhere
between complete and wholly insufficient. Reading through it
cannot fail to raise many questions about what may—or even
must—have happened during voir dire that is not recounted. In
fact, the record reconstruction does not even purport to be
complete. The entirety of the reconstruction consists of the
memories of two attorneys recounted roughly fifteen months
after the trial, and the fog of time is apparent.

¶94 In their affidavits, both attorneys routinely reverse
engineer their recollections from known facts. For instance,
when recounting the voir dire of Juror One, trial counsel stated,
“I do not remember any specific questions or answers, but [the
trooper] would have assured us that he knew how to be fair, and
that he could be fair, if selected as a juror.” (Emphasis added.)
Thus, in his reconstruction effort defense counsel took a known
fact—that Juror One was eventually seated on the jury—and
worked backward to conclude that Juror One must have
dispelled any concerns of bias during questioning, otherwise he
would not have been empaneled. Although the circularity of the
reasoning is obvious, this statement is taken as the truth under
the terms of rule 11, and no one contests that point. But without
Juror One’s actual answers and the questions that elicited them,
the record is incomplete and calls for gap filling. Here, filling the
gap required tracking through several layers of judicial
presumption as explained in the court’s opinion—the very
circumstance the presumptions seem designed to address. For
these reasons I cannot agree with the concurrence’s conclusion

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that, if the certain acts were not made part of the reconstructed
record, then those acts did not take place.

¶95 Second, I believe the concurrence’s analytical approach,
though intended as a more efficient way to reach a just result in
this case, bypasses some important principles. For instance, the
concurrence draws on defense counsel’s prior professional
transgressions to support a conclusion that he acted similarly in
this case; counsel has performed ineffectively in the past, so it is
likely that he did so again. Specifically, the concurrence suggests
that a history of deficient performance overcomes the
presumption of competency that would otherwise apply.

¶96 There is some appeal to such an approach because the
appellate process plays an important role in protecting
defendants from paying the high price of ineffective counsel.
However great the temptation, though, I am concerned that the
concurrence undermines an important principle that generally
prevents character evidence from being used this way. I do not
think it wise to apply what is essentially a character analysis
based on prior occurrences to arrive at conclusions of ineffective
performance under the circumstances of a particular case; rather,
such an exercise seems better suited to the confines of an
adversarial disciplinary process. I also have concerns about the
future effects of suggesting that defendants can bolster their
ineffective assistance of counsel claims on appeal by scouring
case reporters (or other sources) for an attorney’s prior mistakes.

¶97 In addition, I am concerned about the use of extra-record
facts in the discussion of Juror One. The concurrence takes
apparent judicial notice of information far beyond the record on
appeal. For instance, the concurrence collects cases in which
Juror One, in his professional capacity as a highway trooper,
made many traffic stops that state and federal appellate courts
eventually ruled unconstitutional. The concurrence also cites
newspaper and journal articles, the very definition of hearsay,
documenting Juror One’s professional career. Although such

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extrinsic information may be relevant to the determinations of a
trial court and counsel about whether a given juror is fair and
impartial, I do not believe it is appropriate to the work of an
appellate court for two reasons.

¶98 First, it is not clear that the broad judicial notice taken in
the concurrence is appropriate at this stage of the process. This
appeal focused on particular procedural problems in the trial
below; it came to us on briefing, submitted by the parties, that
relied on a single certified record. Enlarging the scope of the
record sua sponte on appeal blurs the boundaries between trial
courts and appellate courts and can work an unfairness on
appellate parties and counsel. See, e.g., State v. Pliego, 1999 UT 8,
¶ 7, 974 P.2d 279 (“An appellate court’s review is limited to the
evidence contained in the record on appeal.” (ellipsis, citation
and internal quotation marks omitted)). If this court, with time
and resources not available to district courts or trial counsel
during voir dire, looks outside the record in this way in even a
small number of cases, it could affect the confidence of parties
and lower courts in the regularity and predictability of our
process, a process that is for good reason constrained in its
approach to appellate review.

¶99 Second, even if Juror One was of such local stature that he
and his professional work history were or should have been
known to the trial court and counsel to the extent the
concurrence suggests, the ultimate consequence of the
concurrence’s analysis is not simply that his background should
have been taken into account (which it apparently was), but that
Juror One would be categorically foreclosed from serving on a
jury considering the sort of issues at play in this case. As a
consequence, any judge that empaneled Juror One could be
reversed for plain error and any decision by counsel to allow
him as a juror would ipso facto amount to ineffective assistance.
However, such a pronouncement from this court invades the
purview of the voir dire process itself, which is designed to
determine on a case-by-case basis if a given citizen can

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effectively fulfill his obligation to serve. I do not think it wise to
suggest here that a certain history, however concerning it may be
on its face, amounts to a per se disqualification for jury service
that cannot be justifiably overcome in the circumstances of a
particular case. For these reasons, and with respect, I see this
case as a much closer question than does the concurrence.

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