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State v. Martinez-Castellanos

Court of Appeals of Utah

January 20, 2017

State of Utah, Appellee,
Abisai Martinez-Castellanos, Appellant.

         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.



         ¶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.


         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 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 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, 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 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 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.

         ¶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,

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:

[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' 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 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.


         ¶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.

         ¶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.


         ¶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 ...

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