Certiorari to the Utah Court of Appeals Fourth District,
Nephi The Honorable James M. Brady No. 101600146
D. Reyes, Att'y Gen., Christopher D. Ballard, Asst.
Solic. Gen., Salt Lake City, for appellant.
P. Dodd, Provo, for appellee.
Justice Durrant authored the opinion of the Court, in which
Associate Chief Justice Lee, Justice Himonas, Justice Pearce,
and Justice Petersen joined.
Durrant, Chief Justice.
Abisai Martinez-Castellanos was charged with two counts of
possession of or use of a controlled substance and one count
of possession of drug paraphernalia after a highway trooper
discovered drugs and drug paraphernalia in his vehicle during
a traffic stop. Before his trial began, his counsel failed to
involve him in the jury selection process. His counsel also
filed a motion to suppress the traffic stop evidence but
repeatedly failed to file any memorandum in support of the
After the jury convicted Mr. Martinez-Castellanos, the trial
court, on its own accord, issued notice that it was
considering granting a new trial because of his trial
counsel's ineffectiveness during the jury selection and
motion to suppress stages. The court appointed separate
conflict counsel to represent Mr. Martinez-Castellanos on the
issues it raised. But conflict counsel chose to act as a
"friend of the court" instead of representing Mr.
Martinez-Castellanos. Conflict counsel argued against Mr.
Martinez-Castellanos's interests, asserting that his
trial counsel's failure did not amount to ineffective
assistance of counsel. The trial court thereafter declined to
grant a new trial.
Mr. Martinez-Castellanos appealed his conviction, arguing
that his counsel was ineffective during the jury selection
and the motion stages, and that the trial court erred in its
dealings with conflict counsel. While the court of appeals
agreed that Mr. Martinez-Castellanos's three claims
constituted errors, it concluded that none of these errors
warranted reversal on its own. It did so, in part, because it
could not determine whether, absent trial counsel's
error, Mr. Martinez-Castellanos's motion to suppress
would have been meritorious. But the court did hold that the
cumulative effect of these errors undermined its confidence
that Mr. Martinez-Castellanos received a fair trial. So it
reversed his convictions and ordered a new trial with new
The State challenges the court of appeals' determination,
arguing that the errors cited by the court did not harm Mr.
Martinez-Castellanos in the slightest and so the cumulative
error doctrine cannot apply. We agree. Without a
determination that the motion to suppress is meritorious, at
least two of the three errors at issue cannot conceivably
cause harm to him, so they cannot cumulate into reversible
error. So we reverse the court of appeals' decision. With
such a determination, however, these errors would not only be
harmful, they would constitute reversible error on their own.
So we cannot uphold Mr. Martinez-Castellanos's
conviction, because the court of appeals failed to determine
whether his motion to suppress was meritorious. We therefore
remand this case to the court of appeals to make this
In June 2010, Abisai Martinez-Castellanos was driving his car
on Interstate 15 through Juab County. A trooper, who had just
finished up a traffic stop on the opposite side of the
highway, observed Mr. Martinez-Castellanos's car
traveling northbound. The trooper got in his patrol car and,
with his emergency lights still engaged, crossed the median
and accelerated in order to get closer to Mr.
Martinez-Castellanos's car. Once the car was within view,
the trooper noticed that the California license plate of the
vehicle was missing a registration sticker-a requirement on
vehicles registered in California. The trooper proceeded to
pull Mr. Martinez-Castellanos over.
Once his vehicle was pulled to the side of the road, Mr.
Martinez-Castellanos provided the trooper with an expired
Colorado license and registration, but he assured the trooper
that he had a valid Utah Driver license. While discussing Mr.
Martinez-Castellanos's information, the trooper testified
that he noticed Mr. Martinez-Castellanos was "a little
bit jittery" and was "bouncin' around a little
bit." The trooper then proceeded to check Mr.
Martinez-Castellanos's information in his patrol car and
also ran a warrants and background check. The trooper
verified that the car was indeed registered and that Mr.
Martinez-Castellanos had a valid Utah Driver license. But he
also discovered that Mr. Martinez-Castellanos had
miscellaneous theft charges dating back to 1997, charges for
drug offenses in 2001 and 2006, and that he had his probation
revoked in 2007 for possessing a controlled substance. Based
on this criminal history, along with Mr.
Martinez-Castellanos's jittery movements, the trooper
testified that he had a "heightened" suspicion that
Mr. Martinez-Castellanos "might be [under] the influence
The trooper then returned to the car and asked Mr.
Martinez-Castellanos to step out of the vehicle. Before
administering several field sobriety tests, the trooper asked
Mr. Martinez-Castellanos if he had any weapons, to which he
responded that he had two work knives in the center console.
After conducting field sobriety tests, the trooper concluded
that Mr. Martinez-Castellanos was under the influence of a
controlled substance. The trooper also concluded, based on
Mr. Martinez-Castellanos's criminal history, that Mr.
Martinez-Castellanos was a restricted person who could not
legally possess knives. The trooper then arrested Mr.
Martinez-Castellanos and searched his car. His search
revealed two pocket knives, a marijuana grinder, a lighter,
two glass pipes, a wrapper containing three pills that later
tested positive for methamphetamine, and a wrapper containing
several prescription pills.
The trooper took Mr. Martinez-Castellanos to jail, where he
admitted that he had smoked marijuana. The trooper obtained a
warrant for a blood draw, which tested positive for THC
metabolite at a level consistent with recent marijuana use.
Mr. Martinez-Castellanos's blood tested negative for a
number of other drugs, including methamphetamine. He also
admitted that the knives were his but claimed to know nothing
about the other drugs and paraphernalia in his car.
The State charged Mr. Martinez-Castellanos with counts of
drug possession, paraphernalia possession, and possession of
a dangerous weapon by a restricted person.
Motion to Suppress
Before trial, Mr. Martinez-Castellanos's appointed trial
counsel filed a motion to suppress the evidence from the car
and the blood draw, asserting that the evidence was
unconstitutionally seized. But trial counsel did not file an
accompanying memorandum with the motion. The trial court then
held an evidentiary hearing on the motion where the trooper
testified for the prosecution and was cross-examined by trial
counsel. At the end of the hearing, trial counsel requested
thirty days to "submit a brief on the matter,"
which the trial court granted. But trial counsel again failed
to file a timely brief. A week after it was due, trial
counsel submitted a motion "request[ing] additional time
in which to file his brief regarding the suppression of
evidence." The court again granted the motion, but trial
counsel again failed to file a brief supporting the motion.
Having received nothing from trial counsel, the State finally
submitted its own memorandum in opposition to the motion to
suppress. Again, trial counsel did not respond, and the court
eventually denied the motion.
About two weeks after the motion was denied, trial counsel
moved to set aside the court's decision and requested
additional time to file a memorandum in support of the
motion. The court granted the request, giving counsel an
additional week to file his supporting memorandum. But
instead of filing a memorandum in support, trial counsel
eventually filed a motion captioned "Submission of
Motion to Suppress," which stated that counsel
"submits the Motion to Suppress Evidence to the Court
based upon the transcript of the suppression hearing."
The trial court thereafter reinstated its prior order denying
the suppression motion, noting that trial counsel had yet
again failed to file a supporting memorandum.
But trial counsel was not done yet. Two days before trial, he
moved to suppress the evidence, arguing that the dash-cam
video demonstrated that there was "no basis" for
the stop. No memorandum in support was filed with this
motion. The trial court again denied the motion.
Selection and Trial
Before trial began, twenty-six members of the jury pool
filled out juror questionnaires and were asked background
questions in open court about matters that might influence
their opinions of the case. After completing these background
questions, thirteen potential jury members were called back
to the trial court's chambers for individual questioning
by him and the attorneys. Mr. Martinez-Castellanos was not
invited, however, into the chambers by the court or his
counsel, and he remained in the courtroom while further
questioning of the potential jury members took place.
Once in chambers, the court and attorneys asked the
individual jury members follow-up questions to their answers
in open court. Three of the potential jurors called into
chambers were of particular concern. The most concerning, the
individual who eventually sat on the jury as Juror One,
revealed in chambers that he was a retired Utah Highway
Patrol trooper who had forty years' worth of experience
in drug interdiction on Utah's highways (a significant
portion of which was spent on the stretch of highway where
Mr. Martinez-Castellanos was arrested), and had participated
in "many jury trials." He also acknowledged that he
knew the arresting trooper, but he stated he would not give
the trooper's testimony "more weight," but
"would make up his mind based on the facts presented in
court." He also "assured [both counsel] that he
knew how to be fair, and that he could be fair if selected as
As to the other two jurors of concern, the individual who
eventually sat as Juror Two revealed in chambers that she had
been a victim of a violent crime, that her son had been
prosecuted in California for drugs, that she was against
drugs, and that she believed "that if a person had drugs
in the car, they were probably guilty." And the
individual who eventually sat as Juror Six was
"reluctant to disclose what was going on in her own
mind." When the court asked if she could be fair and
impartial, she expressed "reservations about her ability
to function as a juror." The court asked her the same
question again and she responded that "she understood
what the judge wanted and she believed she could serve as a
After these questions, each of the thirteen prospective
jurors was dismissed from the judge's chambers, and the
court asked the attorneys whether they had any issues with a
particular prospective juror and whether the attorneys passed
the prospective jurors for cause. There is no evidence that
any concern was raised about a particular prospective juror
or that any were actually challenged for cause.
At the conclusion of the in-chambers questioning, the
attorneys returned to the courtroom. Mr.
Martinez-Castellanos's trial counsel did not discuss with
him what had occurred in chambers and did not mention the
possible biases of the three potential jurors. Trial counsel
simply exercised his four peremptory strikes without
consulting Mr. Martinez-Castellanos. Counsel did not strike
Jurors One, Two, or Six.
The court named the eight members of the jury, which included
Jurors One, Two, and Six, and a one-day trial was held. The
jury convicted Mr. Martinez-Castellanos of two felonies for
possession or use of a controlled substance and two related
A week after the trial, the trial court issued a notice
sua sponte, indicating that it was considering
granting a new trial pursuant to rule 24 of the Utah Rules of
Criminal Procedure. 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."
Specifically, the court identified two events that, in its
view, demonstrated Mr. Martinez-Castellanos possibly received
ineffective assistance of counsel: "Defense
counsel's failure to file any memorandum following an
evidentiary hearing on [Mr. Martinez-Castellanos's]
motion to suppress"; and "Defense counsel's
failure to challenge or remove a potentially biased juror
[(Juror One)] from the jury on the day of trial."
In the course of a subsequent hearing on the matter, the
court concluded that it was no longer concerned with the
"potentially biased juror" issue due to a recent
Utah Court of Appeals' decision. The court did decide,
however, to appoint conflict counsel to represent Mr.
Martinez-Castellanos in post-trial proceedings regarding the
motion to suppress issue. The court expressed its concern
with "[w]hether or not the evidence . . . supported the
continued retention of [Mr. Martinez-Castellanos] after [the
trooper] determined that the vehicle was registered,"
and "whether there was . . . justification for having
[Mr. Martinez-Castellanos] step out of the car and further
perform . . . field sobriety tests" when the trooper
discovered that the car was registered to Mr.
Martinez-Castellanos, that Mr. Martinez-Castellanos was who
he said he was, and that Mr. Martinez-Castellanos had a valid
Driver license. The court was also concerned with
"whether there was reasonable suspicion." The court
instructed conflict counsel to address whether trial
counsel's failure to file any memorandum on the motion to
suppress issue constituted ineffective assistance of counsel.
About a month later, conflict counsel submitted a memorandum
entitled "Amicus Brief." Conflict counsel began his
brief by stating that he was acting "as a friend of the
Court." He did not address the concerns the court
expressed regarding the extended duration of the traffic stop
in his brief, but instead addressed only whether trial
counsel's failure to file the memorandum rose to a level
of ineffective assistance of counsel. He laid out the
two-part Strickland analysis for ineffective
assistance of counsel and applied it in this case. Then,
surprisingly, conflict counsel argued that Mr.
Martinez-Castellanos could not meet the prejudice prong of
the Strickland test, noting that it "is
difficult, if not impossible to find that [Mr.
Martinez-Castellanos's counsel's] failure to file a
legal memorandum could satisfy the second prong of the
Strickland test." He concluded his brief by
stating 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. He
therefore advised the court that its decision denying the
motion had addressed the concerns it had raised. He did not
advocate for a different result on Mr.
The State did not file a response to conflict counsel's
brief but rather concurred with the findings of conflict
counsel. The trial court agreed with conflict counsel's
conclusion and withdrew its notice. The court dismissed
conflict counsel and reinstated trial counsel to represent
Mr. Martinez-Castellanos through the rest of the proceedings.
Mr. Martinez-Castellanos was subsequently sentenced to zero
to five years in the Utah State Prison. The court suspended
the sentences and placed him on probation.
Trial counsel then filed a timely motion for a new trial,
asking the court to suppress the evidence from the traffic
stop and blood draw, and noting that the trial court itself
had expressed concern with this evidence. Once again,
however, trial counsel failed to file a supporting
memorandum. Instead, he simply attached the transcripts of
the preliminary hearing, the suppression hearing, and the
trooper's trial testimony. In the motion, trial counsel
did argue that there was "a substantial change in the
[trooper's] testimony regarding the reason for the stop
and the time and delay in the stop" during these
hearings. And, in light of the change in testimony, trial
counsel argued that the order denying the motion to suppress
"should be set aside and reconsidered." But counsel
did not further flesh out this issue. The State opposed the
new motion as untimely and inadequate, and the trial court
denied the motion without explanation. Mr.
Martinez-Castellanos thereafter timely appealed his
Court of Appeals' Decision
Before the court of appeals, Mr. Martinez-Castellanos argued
that trial counsel was ineffective during jury selection and
in his efforts to litigate the motion to suppress. Mr.
Martinez-Castellanos also argued that the trial court
committed plain error in failing to provide him with
competent conflict counsel to address the court's
post-trial notice. A majority panel of the court of appeals
concluded that each of these three assertions identified an
error, but that none of these errors alone warranted
The court of appeals first reviewed trial counsel's
actions during jury selection and concluded that counsel was
deficient when he "fail[ed] to provide
Martinez-Castellanos a meaningful opportunity to participate
in the [jury selection] process-either through physical
presence in chambers or at minimum through consultation
afterward." But it concluded that this error did not
meet the prejudice prong of the Strickland test. The
court reasoned that in order for Mr. Martinez-Castellanos to
show prejudicial error under Strickland, he must
show "that a biased juror actually
sat."And because it believed "the limited
record in this case permits no ...