POHLMAN, Judge
Opinion Third District Court, Salt Lake Department
The Honorable Katie Bernards-Goodman
No. 141914264 Teresa L. Welch, Attorney for Appellant Sean D. Reyes and Jeffrey S. Gray, Attorneys for Appellee JUDGE JILL M. POHLMAN authored this Opinion, in which JUDGES KATE A. TOOMEY and DIANA HAGEN concurred. POHLMAN, Judge: ¶1 Appellant Raymond Jesus Marquina was convicted for aggravated robbery, a first degree felony, after he attempted to rob Victim and shot him five times. Marquina now appeals that conviction, contending that he is entitled to a new trial because at least one juror may have slept through a portion of his trial. Marquina also contends that his conviction should be vacated because there was insufficient evidence to place him at the scene of the crime. We affirm.
BACKGROUND
On an appeal from a jury trial, "we review the record facts in a light most favorable to the jury's verdict and recite the facts accordingly." State v. Holgate, 2000 UT 74, ¶ 2, 10 P.3d 346 (quotation simplified). "We present conflicting evidence only as necessary to understand issues raised on appeal." Id.
The Crime
¶2 A few minutes after returning home from an evening out, Victim and his wife (Wife) heard a ring of the doorbell and a knock on the door. Victim opened the door and saw a man on his porch with a blue and white-streaked mask covering his face. The man was about 5'5'' tall and of average build. He said something that Victim could not understand and then "immediately started pulling" the trigger of his gun. Victim was shot five times in the neck and face. ¶3 Wife, who was upstairs during the attack, heard three gun shots and rushed to the top of the stairs where she had a view of the front door. She saw "an arm with a dark-colored covering" and a gloved hand holding a gun. Still from her vantage point, Wife saw Victim fall to the floor and gurgle "lots of blood" as he tried to yell for her. Wife called the police and, after they arrived, Victim was taken to the hospital. ¶4 Neighbors also heard the gunshots. One neighbor looked through his window and saw two persons wearing black hoodies running away. Another neighbor ran out of her house in an attempt to see the shooter. She did not see anyone but, upon approaching Victim's house, stumbled on a black mask in Victim's driveway. Police later recovered the mask and sent it to the crime lab for DNA testing. That testing led the police to a local drug dealer (Dealer).
Victim acknowledged that he could not be sure of the color because he was red-green color deficient.
The Three Accomplices
¶5 Shortly before the shooting, Dealer decided to rob someone because he needed money to pay his rent. He had heard from several of his customers that Victim kept a lot of cash in his van and would be a good target. With help from his girlfriend (Girlfriend), Dealer made a plan to rob Victim. ¶6 Dealer then told his occasional chauffer (Driver) that he "had something [he] needed him to do." Driver was a drug addict who received free drugs from Dealer. He went along with Dealer and Girlfriend on the night of the robbery because Dealer, who "can't see well at night," needed someone to drive. ¶7 After a police investigation, Dealer, Girlfriend, and Driver admitted their involvement in the aggravated robbery of Victim. And all three placed Marquina at the scene of the crime. ¶8 Marquina, who was a member of the same gang as Dealer, had joined Dealer and Girlfriend at Dealer's apartment on the day of the robbery. While at the apartment, Dealer asked Marquina "if he wanted to go do some dirt with [him] real quick," and Marquina said he did. ¶9 Dealer, Girlfriend, Driver, and Marquina then got into Dealer's car. Dealer drove and placed a gun between the ¶12 A few weeks later, after the police had questioned Dealer, Girlfriend, and Driver, each of whom implicated Marquina in the shooting, Marquina was arrested. Marquina's driver license listed him as 5'6'' and 120 pounds. Shortly after Marquina's arrest, the police conducted a photo array identification with Victim, who survived the shooting. Marquina's photograph was in the array, but Victim identified someone else as the shooter.
"Dirt," as explained by Dealer, means a robbery.
The witnesses disagreed at trial about exactly when Marquina got in Dealer's car. Girlfriend testified that Marquina joined them as soon as they left Dealer's apartment, but Dealer and Driver testified that Marquina followed them in his own truck to a parking lot a few blocks away from Victim's house, parked his truck, and then got in Dealer's car.
Marquina's cell phone records show a number of calls and text messages from Girlfriend both before and after the shooting. But during the time of the robbery—from about 9:18 p.m. to 11:10 p.m.—there was no phone activity between Girlfriend and Marquina.
The Trial
¶13 The State charged Marquina with one count of aggravated robbery, which included a group enhancement. Dealer, Girlfriend, and Driver each testified at Marquina's trial. Dealer had pled guilty to the aggravated robbery and agreed to testify even though it was "going to make [his life in prison] worse." He did not expect to receive "any benefit whatsoever" for testifying. Girlfriend pled guilty to obstruction of justice, but in exchange for her testimony against Marquina, she was placed on probation in lieu of incarceration. Driver also struck a deal that, in exchange for his testimony, he would be placed on probation for robbery and would enter a rehabilitation program. Although all three of their accounts varied in some particulars, each witness placed Marquina at the scene of the crime. See supra ¶¶ 7-12. ¶14 The trial lasted three days. On the second and third days, the prosecutors mentioned a sleepy juror. The first time, defense counsel was in the middle of cross-examining one of the detectives on the case when one prosecutor noticed a juror "nodding off." The prosecutor asked for a break so the jurors could stretch, and the court agreed to take a fifteen-minute recess. ¶15 The second time, after reading the jury instructions, the court discussed with counsel its intention to make the last-selected juror the alternate unless the parties agreed on someone else. In response, a second prosecutor noted that "we do have someone who has been sleeping through part or—not all but part of the testimony" and reasoned that, because closing arguments were likely to be lengthy, it would "probably [be] safer to use the alternate . . . as an actual juror." The prosecutor further explained that the juror "has been dozing off here now, but there have been moments when he has been seemingly out." Defense counsel stated he "ha[d] not noticed any of the jurors sleeping," but that he "ha[d not] really been focusing on them." Defense counsel went on to refer to a judge who "is often mistaken by many counsel to be sound asleep . . . when the truth of the matter is he is just resting his eyes," and that counsel will realize that "not only has he been listening but he has been processing everything in a very high way." The court then observed that "everyone tried to stay awake" and, with no objection from counsel, left the jury as it was. The court also invited counsel to alert the court if they "change[d] [their] mind[s] after closing" and stated, "We will be looking at [the jury] this time." ¶16 Neither side raised further concerns after closing argument. The alternate juror was excused and the jury retired to deliberate. The jury unanimously found Marquina guilty of aggravated robbery, and Marquina appeals.
Under Utah Code section 76-3-203.1, a criminal defendant is subject to "an enhanced penalty" if the defendant acted "in concert with two or more persons." Utah Code Ann. § 76-3-203.1(2)(a), (5)(i) (LexisNexis 2017). Because Marquina allegedly robbed Victim "in concert" with Dealer, Girlfriend, and Driver, the State sought a group enhancement under this section.
ISSUES AND STANDARDS OF REVIEW
¶17 Marquina raises two issues on appeal. First, he contends that his Sixth Amendment right to an impartial jury was violated because at least one juror reportedly slept during his trial. Normally, "[c]onstitutional issues are questions of law that we review for correctness," State v. Norcutt, 2006 UT App 269, ¶ 7, 139 P.3d 1066, but unpreserved constitutional issues, as Marquina concedes this is, are reviewed "under the ineffective assistance of counsel and plain error doctrines," see State v. Bond, 2015 UT 88, ¶ 14, 361 P.3d 104. ¶18 Second, Marquina contends that there was insufficient evidence to support his conviction for aggravated robbery. "When a defendant challenges a jury verdict for insufficiency of the evidence, we review the evidence and all inferences which may be reasonably drawn from it in the light most favorable to the verdict." State v. Noor, 2012 UT App 187, ¶ 4, 283 P.3d 543 (quotation simplified); see also State v. Ashcraft, 2015 UT 5, ¶ 18, 349 P.3d 664 ("On a sufficiency of the evidence claim we give substantial deference to the jury."). We will reverse a jury verdict only when "the evidence is sufficiently inconclusive or inherently improbable such that reasonable minds must have entertained a reasonable doubt that the defendant committed the crime for which he or she was convicted." State v. Holgate, 2000 UT 74, ¶ 18, 10 P.3d 346 (quotation simplified).
ANALYSIS
I. Sixth Amendment Jury Right
¶19 The Sixth Amendment guarantees criminal defendants "the right to . . . an impartial jury." U.S. Const. amend. VI. Marquina contends that he was denied this right when a juror to represent a criminal defendant." Met v. State, 2016 UT 51, ¶ 113, 388 P.3d 447 (quotation simplified). And counsel is given an especially wide berth with regard to jury selection and retention. See State v. Litherland, 2000 UT 76, ¶ 20, 12 P.3d 92. This is because "jury selection is more art than science":
There are a multitude of inherently subjective factors typically constituting the sum and substance of an attorney's judgments about . . . jurors. A . . . juror's demeanor, interaction with others in the courtroom, and personality in general may all play an important role in providing clues as to that juror's likely predilections toward the case at hand.
Id. ¶ 21.
¶38 Counsel's choices about the jury "may even appear counterintuitive, particularly when viewed from the perspective of a bare transcript on appeal."
Id. ¶ 22. For example, counsel may reasonably think that a potentially biased juror may "overcompensate" and "assign[] more weight or credibility to testimony that tends to oppose the juror's own potential bias."
Id. At bottom, an attorney's decisions regarding the jury "legitimately may be based on little more than personal preference."
Id. ¶ 23.
¶39 Here, we must presume Marquina's defense counsel's conduct fell "within the wide range of reasonable professional assistance."
Calvert, 2017 UT App 212, ¶ 22 (quotation simplified). Jury selection and retention are "more art than science,"
Litherland, 2000 UT 76, ¶ 21, and Marquina's counsel was able to observe the jurors, including the alternate, over the course of three days. Everything from the jurors' demeanors to their reactions to testimony may have played a role in counsel's decision not to insist on replacing the sleepy juror. He may have simply preferred the jury he had. Even if this choice seems "counterintuitive," counsel may have reasonably thought that a sleepy juror would "overcompensate" and would be reluctant to convict.
See id. ¶ 22 (quotation simplified). Moreover, counsel's choices are viewed objectively; "[t]he first prong of the
Strickland standard . . . requires that a defendant rebut the strong presumption that under the circumstances, the challenged action
might be considered sound trial strategy."
Id. ¶ 19 (emphasis added) (quotation simplified). Marquina argues that without knowing who the sleepy juror was or insisting on an inquiry into what was missed, his defense counsel "could not make a reasonable tactical decision" to keep the juror. But even without knowing who the sleepy juror was, defense counsel may have preferred
any of the actual jurors over the alternate juror. Moreover, although the record is unclear as to which juror may have been sleeping, the prosecutor might have communicated the information off the record. Therefore, we will not presume that counsel's conduct here was unreasonable "viewed from the perspective of a bare transcript on appeal."
See id. ¶ 22. Because Marquina has not demonstrated his counsel was objectively deficient, he has not established ineffective assistance of counsel.
Voir dire is an "examination of a prospective juror by a judge or lawyer to decide whether the prospect is qualified and suitable to serve on a jury." Voir Dire, Black's Law Dictionary (10th ed. 2014). Typically, voir dire refers to jury selection at the outset of trial but, in this case, it encompasses examinations after the jury has been selected.
As discussed below, infra ¶ 39, we presume defense counsel's actions might be considered sound trial strategy, and we observe that a trial court "is not required to constantly survey or second-guess a nonobjecting party's best interests or trial strategy." State v. Bedell, 2014 UT 1, ¶ 26, 322 P.3d 697 (quotation simplified).
See Commonwealth v. McGhee, 25 N.E.3d 251, 255-58 (Mass. 2015); People v. Franqui, 999 N.Y.S.2d 40, 41 (App. Div. 2014); State v. Majid, 914 N.E.2d 1113, 1114-17 (Ohio Ct. App. 2009); State v. Hurd, 480 S.E.2d 94, 97 (S.C. Ct. App. 1996) (per curiam).
Litherland discussed jury selection at the outset of trial. Although here we address the potential substitution of a juror near the end of trial, we agree with the State that Litherland's rationale applies. Indeed, by the end of trial, counsel will have had even more time to observe jurors and determine their "likely predilections toward the case." See State v. Litherland, 2000 UT 76, ¶ 21, 12 P.3d 92. --------
II. Sufficiency of the Evidence
¶40 Marquina next contends that there is insufficient evidence to convict him of aggravated robbery. He asserts that there is no physical or DNA evidence placing him at the crime scene and that "the only evidence that placed [him] at the crime scene was Girlfriend, and Driver—each admitted to their involvement in the crime and placed Marquina at the crime scene. See Utah Code Ann. § 77-17-7(1) ("A conviction may be had on the uncorroborated testimony of an accomplice."). ¶49 As in Smith, some of the accomplices here reached a deal with prosecutors for their truthful testimony, though Dealer testified that he did not expect to receive "any benefit whatsoever" for testifying at Marquina's trial and that it was "going to make [his life in prison] worse." The defense was free to present evidence to show the witnesses' unreliability or biases, which it did. The defense was also able to point out inconsistencies in the witnesses' testimonies. But "the jury [was] not obligated to believe that evidence." Smith, 706 P.2d at 1056. The witnesses' accounts differed in some particulars, but as to the core issue—Marquina's involvement in the aggravated robbery of Victim—the stories were consistent. At bottom, it was for the jury to "weigh the evidence and to determine the credibility of the witnesses." Boyd, 2001 UT 30, ¶ 16 (quotation simplified). On appeal, we will not second-guess the jury or "sit as a second trier of fact." Id. Thus, viewing the facts in the light most favorable to the verdict, we cannot say the insufficiency of the evidence here "was so obvious and fundamental that the trial court erred in submitting the case to the jury." See State v. Holgate, 2000 UT 74, ¶ 17, 10 P.3d 346.
CONCLUSION
¶50 We conclude that Marquina has not demonstrated that the trial court plainly erred in not sua sponte conducting voir dire or removing an allegedly sleepy juror. We likewise conclude that Marquina has not demonstrated that his defense counsel rendered constitutionally ineffective assistance by not requesting that the juror be removed. Finally, we conclude that the evidence was not so lacking that the trial court plainly erred in submitting the case to the jury. Accordingly, we affirm.