District Court, Salt Lake Department The Honorable Katie
Bernards-Goodman No. 141914264
L. Welch, Attorney for Appellant
D. Reyes and Jeffrey S. Gray, Attorneys for Appellee
Jill M. Pohlman authored this Opinion, in which Judges Kate
A. Toomey and Diana Hagen concurred.
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.
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.
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.
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).
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.
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.
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
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.
Dealer, Girlfriend, Driver, and Marquina then got into
Dealer's car. Dealer drove and placed a gun between the
driver's seat and the emergency brake. Because they did
not know where Victim lived, Girlfriend tried searching the
internet to find his address. Her search initially led them
to the wrong neighborhood, but they eventually found
Victim's house with Victim's van parked outside. They
drove around the neighborhood "for what seemed like
forever" until Girlfriend asked Dealer, "Are you
going to do this or not?"
Dealer and Marquina eventually got out of the car, while
Driver took the driver's seat and circled the car around
the block. Both Dealer and Marquina wore black hoodies, and
Dealer brought two masks-one black and one blue with white
streaks. Marquina put on the blue and white-streaked mask,
but Dealer was unable to get his black mask on and threw it
back toward his car. On the way to Victim's front door,
Dealer got nervous and sent Marquina to the door alone.
Marquina rang the doorbell and knocked. When Victim answered,
Marquina shot him.
Marquina and Dealer then ran up Victim's street until
they spotted Dealer's car. They yelled for Driver to stop
and got in the backseat. Driver then drove straight back to
Dealer's apartment. Once there, Marquina went his own
way. Girlfriend phoned Marquina repeatedly that night to
"see if he was okay," but Marquina never
¶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.
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.
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.
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
Neither side raised further concerns after closing argument.
The alternate juror was excused and the jury retired to
deliberate. The jury unanimously found Marquina ...