State v. Martinez , 728 Utah Adv. Rep. 20 ( 2013 )


Menu:
  •                         
    2013 UT App 39
    _________________________________________________________
    THE UTAH COURT OF APPEALS
    STATE OF UTAH,
    Plaintiff and Appellee,
    v.
    JULIO I. MARTINEZ,
    Defendant and Appellant.
    Memorandum Decision
    No. 20110015‐CA
    Filed February 22, 2013
    Third District, Salt Lake Department
    The Honorable Deno G. Himonas
    No. 091903723
    Samuel P. Newton, Attorney for Appellant
    John E. Swallow and Christine F. Soltis, Attorneys for Appellee
    JUDGE GREGORY K. ORME authored this Memorandum Decision,
    in which JUDGE J. FREDERIC VOROS JR. concurred.
    JUDGE WILLIAM A. THORNE JR. dissented, with opinion.
    ORME, Judge:
    ¶1     Defendant argues that his convictions should be vacated and
    a new trial ordered because his trial attorneys labored under a
    conflict of interest that adversely affected their performance in
    representing him. Defendant also contends that the trial court
    improperly denied his motions to appoint new counsel and failed
    to adequately inquire into the nature of the conflict between
    Defendant and his counsel. We affirm.
    State v. Martinez
    ¶2     Defense counsel’s efforts on Defendant’s behalf appear to
    have been quite thorough. In the months leading up to trial,
    Defendant’s attorneys requested discovery, a bail hearing, and
    Defendant’s release from incarceration so he could attend a funeral;
    represented Defendant at a preliminary hearing and his
    arraignment; attended a scheduling conference; moved for the
    discovery of and subpoenaed the victim’s Division of Child and
    Family Services (DCFS) records; provided notice of self‐defense, as
    required by statute; and moved to continue the trial to allow for
    additional defense investigation.
    ¶3      Despite defense counsel’s efforts, two months before trial
    Defendant filed a pro se motion requesting new counsel. Defendant
    claimed that his attorneys were not communicating with him and
    that they had failed to obtain “medical” records, apparently
    referring to the DCFS records. The trial court held a hearing to
    discuss Defendant’s motion, and the court questioned Defendant
    about his concerns. Defendant complained that his attorneys had
    not moved to suppress a statement that his father had made to
    police. Counsel replied that they had reviewed the statement but
    believed that there was no good faith basis on which to argue that
    the statement should be suppressed. They also noted that the
    prosecution did not intend to introduce the statement at trial. The
    trial court determined that there was no reason to suppress the
    statement and, consequently, found that there was no good cause
    to appoint new counsel on this basis.
    ¶4     Regarding Defendant’s claim that his attorneys’
    communication with him was inadequate, defense counsel
    explained that they maintained records of all jail visits and had
    been visiting Defendant more often than their other jailed
    clients—about three out of four weeks per month, for fifteen
    minutes to an hour per visit. As to Defendant’s complaint that
    defense counsel had not secured the victim’s DCFS records,
    counsel explained that efforts to secure the records were ongoing
    and being litigated. The trial court found defense counsel’s
    explanations satisfactory. The court confirmed that Defendant had
    20110015‐CA                      2                 
    2013 UT App 39
    State v. Martinez
    no other concerns or complaints. The court informed Defendant
    that if he had concerns in the future he should come forward with
    them, but it concluded that there was “absolutely no basis for
    replacing counsel” at that time.
    ¶5     Defense counsel’s continued diligence on behalf of
    Defendant is demonstrated by their pretrial motion to sever count
    two, robbery, from the other counts. Although the motion was
    denied, the court directed the State not to elicit evidence at trial
    about either the underlying theft or Defendant’s gang affiliations.
    The court also granted a defense motion forbidding any reference
    to the victim as a “victim.” Defense counsel asked the court to
    prohibit an officer from testifying at trial that the victim was in
    condition “delta”—one step short of death—when the officer
    arrived on the scene. The trial court denied that motion.
    ¶6     Defense counsel’s diligent efforts on Defendant’s behalf
    continued at trial. The introduction of a taped telephone call from
    Defendant, while in jail, to the victim was delayed until the defense
    had an opportunity to review it. Although overruled by the court,
    an objection to a jury instruction was interposed by defense
    counsel. After the State’s direct examination of its second witness,
    a convenience store clerk, defense counsel informed the court,
    outside the presence of the jury, that Defendant wanted to know
    whether a plea offer was still “on the table.” Upon discussing the
    available offer with counsel, Defendant rejected it, and the trial
    continued.
    ¶7      Defense counsel then cross‐examined the clerk, who testified
    that he had seen Defendant in the store on other occasions but did
    not know his name and had not previously conversed with him. As
    one of his attorneys questioned the clerk, Defendant passed her a
    note. Counsel then asked the clerk if he had testified at Defendant’s
    preliminary hearing that he and Defendant had engaged in
    “dozens” of conversations in the past. The prosecution objected
    that this was a misstatement of the prior testimony. When defense
    counsel asked to withdraw the question, the court refused and
    20110015‐CA                      3                 
    2013 UT App 39
    State v. Martinez
    directed counsel to read the relevant portion of the preliminary
    hearing transcript aloud. The thrust of the testimony was that the
    clerk had only seen or waited on Defendant on several prior
    occasions but had not otherwise interacted with him. The court
    then admonished defense counsel for improper impeachment of
    the witness.
    ¶8     After the jury was excused that day, the court scolded
    defense counsel again about the improper impeachment effort.
    Defendant injected himself into the conversation and began to
    argue with the court, insisting that the store clerk’s earlier
    testimony differed from his trial testimony, contending, “It says it
    right here on the preliminary transcripts.” The court cut Defendant
    off, telling him that his attorneys could explain why the
    impeachment was improper. Defendant replied, “Well, I think I’m
    going to file an ineffective assistance of counsel on me then because
    you’re not representing—you are not representing—you are not
    going right through the—.” The court then asked both defense
    attorneys if the store clerk had previously testified to having
    dozens of conversations with Defendant. Both replied that he had
    not.
    ¶9      That evening, defense counsel contacted the presiding judge
    of the district to discuss “an issue of concern.” They explained that
    they felt “a sense of intimidation” and “couldn’t really articulate
    what it was, but that there was a sense of being compromised in
    the ability to exercise a judgment they normally exercise or to make
    a decision they would normally make.” The defense attorney who
    had undertaken the improper impeachment after being prompted
    by Defendant’s note explained that the sense of intimidation had
    caused her to do “something . . . that day . . . that was against an
    old judge that she normally would not have done.” The presiding
    judge telephoned the trial judge to inform him of the conversation.
    ¶10 The next morning, with all counsel present, the court
    disclosed in chambers that defense counsel had engaged in an ex
    parte communication with the presiding judge. Defense counsel
    20110015‐CA                      4                 
    2013 UT App 39
    State v. Martinez
    reiterated that “there’s just something about this particular
    individual that raises concerns to us.” The court stated:
    It’s your duty adequately and zealously to represent
    him. And it sounds to me, you correct me if I am
    wrong, it’s not that you are foregoing legitimate
    cross‐examination, . . . it’s that perhaps his
    intimidation has led you to do things that would
    otherwise be against your professional judgment.
    Counsel replied, “That’s accurate, your Honor.” The court, in
    reference to the prior improper impeachment, said:
    My sense right now . . . it’s more of . . . intimidation,
    but that’s not the point. And if that’s the case, . . . my
    initial reaction is, forgive me saying this a little bit,
    but it’s—you’ve got a duty to your client and you’re
    also an officer of the Court. And at some point you
    just call, excuse my French, bullshit, and you don’t
    do things like last night. Right?
    The court then called a recess to allow the attorneys to talk. After
    the break, the State indicated its belief that defense counsel would
    represent Defendant “with the integrity of court officers and do
    their job like they should.” Defense counsel agreed that they were
    ready to continue with the trial.
    ¶11 Back in the court room, but without the jury present, the
    court told Defendant what had been discussed in chambers. The
    court informed Defendant that his reaction to the court’s ruling
    regarding the previous day’s impeachment had been improper.
    Defendant initially agreed, stating that perhaps his counsel had
    misunderstood the questions that he had wanted asked, but he
    later began to argue, insisting that the convenience store clerk had
    testified differently at trial than he had previously.
    20110015‐CA                        5                  
    2013 UT App 39
    State v. Martinez
    ¶12 The court also addressed the intimidation concerns,
    explaining:
    I’ve been informed by your counsel that they feel
    intimidated by you, whether rightfully or
    wrongfully, . . . and they have disclosed that
    intimidation and that has perhaps caused them to do
    things that they would not otherwise do as officers of
    the Court. . . . We’re going to go forward with this
    trial. Okay?
    ¶13 Defendant then stated, “Well, I’m already going to fill out a
    motion to—file for a new counsel based on integrity of counsel
    . . . .” Defendant summarized the basis for his renewed motion in
    these terms:
    My lawyers, they feel intimidated by me, so,
    therefore, we have a conflict of interest. So therefore,
    they feel they are afraid of me or whatever their
    complaints would be. So, therefore, there’s a conflict
    between me and the lawyers. So, therefore, I don’t
    see how we can, you know, communicate without
    me feeling that there’s a fear between me and them.
    In response, both defense attorneys again indicated that they could
    “vigorously represent” Defendant. The court told Defendant, “I
    don’t think that you get to recreate the situation in which you get
    new counsel by doing that,” i.e., by intimidating appointed
    counsel.
    ¶14 Defendant then argued again why he felt that replacement
    counsel was necessary. He first claimed that his lawyers had failed
    to suppress his father’s statement—which was not admitted at
    trial—but that claim had earlier been considered and rejected by
    the court. Defendant also claimed that his attorneys had not
    informed him that a severance motion had been denied and
    insisted he was not present when the motion was argued and
    20110015‐CA                      6                 
    2013 UT App 39
    State v. Martinez
    decided. Both attorneys responded that Defendant had been
    present, whereupon the court told Defendant, “Stop pulling my leg
    then[.]” Defendant admitted he had forgotten that he had been
    present and asked to withdraw his motion for substitution of
    counsel, stating that he would “agree to go forward with this
    counsel.” The court responded, “I’m not giving you a choice. Your
    motion is denied.” As the court attempted to go on, Defendant
    accused the court of “violating [his] constitutional rights.”
    Defendant then “stare[d] down” the judge. The judge told
    Defendant, “I’ve tried . . . a couple of hundred jury cases, and I’m
    telling you that you are being as difficult a defendant as any I have
    encountered[.]”
    ¶15 As the trial continued, defense counsel actively objected to
    evidence and cross‐examined witnesses. Defense counsel twice
    moved for a mistrial after the bailiff overheard two jurors
    discussing why additional deputies were in the courtroom and
    heard one juror comment that it was so Defendant could be
    detained if convicted. Defense counsel opposed any questioning of
    the individual jurors or the use of a curative jury instruction out of
    concern for calling more attention to the matter. The court denied
    the motions for mistrial and reaffirmed the denial when the motion
    was again renewed.1 The defense moved unsuccessfully for a
    directed verdict on the attempted murder charge, claiming that
    there was insufficient evidence to convict Defendant on the
    “intentional” or “knowing” element of the crime.
    ¶16 Outside the presence of the jury, defense counsel told the
    court that they had explained to Defendant that he had a right to
    testify and that he had opted not to do so. The court questioned
    Defendant to ensure that his choice was informed, that he had had
    1
    The juror who made the comment was later removed
    from the jury at defense counsel’s request and replaced with an
    alternate.
    20110015‐CA                       7                 
    2013 UT App 39
    State v. Martinez
    adequate time to consult with his counsel, and that he understood
    the consequences of not testifying.
    ¶17 In closing argument, defense counsel argued that Defendant
    truly lacked the intent to kill the victim despite his stated intention
    to do so. Counsel argued that the attempted murder count was the
    result of overzealous charging by the State and urged the jury to
    instead find Defendant guilty of a lesser included offense.
    ¶18 Defense counsel admitted that Defendant was guilty of
    domestic violence in the presence of children but argued that the
    violence was perpetrated in the course of an assault rather than an
    attempted murder. Defense counsel also admitted that Defendant
    was guilty of interference with a lawful arrest but forcefully argued
    that he should be acquitted of robbery due to the store clerk’s lack
    of credibility. The jury acquitted Defendant of the charge of
    attempted murder, finding him guilty instead of the lesser included
    offense of aggravated assault, but convicted him of the remaining
    charges.
    ¶19 The day after trial, in a telephone conference with the
    prosecution and defense counsel, the trial judge explained that he
    had learned from a credible source that one of Defendant’s
    attorneys “was, not last night but the night before, followed home
    and had to alert the authorities.” The attorney confirmed that she
    had called the police after being followed home. The court stated
    that it felt obligated to disclose the matter.
    ¶20 Two weeks after trial but prior to sentencing, Defendant’s
    attorneys withdrew and new counsel was appointed to represent
    Defendant. New counsel moved to recuse the trial judge from the
    sentencing phase, but the motion was denied. New counsel moved
    for a new trial, claiming that both of Defendant’s trial attorneys
    were ineffective. New counsel later rescinded that motion. New
    counsel withdrew after sentencing, and Defendant’s appellate
    counsel was appointed.
    20110015‐CA                       8                  
    2013 UT App 39
    State v. Martinez
    ¶21 On appeal, Defendant asserts that his convictions should be
    vacated and a new trial ordered because his trial attorneys felt
    intimidated by him and, therefore, a conflict of interest existed.
    Whether an actual conflict existed is a mixed question of fact and
    law. See State v. Lovell, 
    1999 UT 40
    , ¶ 22, 
    984 P.2d 382
    . “First, we
    review the district court’s factual conclusions under a clear error
    standard. Second, we review the district court’s legal interpretation
    of particular ethical norms under a de novo standard when that
    interpretation implicates important constitutional rights.” State v.
    Balfour, 
    2008 UT App 410
    , ¶ 11, 
    198 P.3d 471
     (citation and internal
    quotation marks omitted).
    ¶22 We first consider whether an actual conflict existed between
    Defendant and his trial counsel. Absent proof that an actual conflict
    existed, we review a trial court’s refusal to appoint new counsel
    under an abuse of discretion standard, see State v. Scales, 
    946 P.2d 377
    , 381 (Utah Ct. App. 1997), and Defendant argues that, at a
    minimum, the trial court erred in denying his motions for
    substitution of counsel.
    ¶23 An indigent defendant has a right to have counsel appointed
    to represent him at public expense, Gideon v. Wainwright, 
    372 U.S. 335
    , 344–45 (1963), and the Sixth Amendment guarantees
    defendants the right to effective assistance from such counsel, see
    Strickland v. Washington, 
    466 U.S. 668
    , 688–89 (1984). This means
    that defense counsel must reasonably assist the defendant in
    receiving a fair trial. 
    Id. ¶24
     “The accused is entitled to the assistance of a competent
    member of the Bar, who demonstrates a willingness to identify
    himself with the interests of the defendant and who will assert such
    defenses as are available to him under the law and consistent with
    the ethics of the profession.” State v. Classon, 
    935 P.2d 524
    , 533–34
    (Utah Ct. App. 1997) (citation and internal quotation marks
    omitted). However, “the appropriate inquiry focuses on the
    adversarial process, not on the accused’s relationship with his
    lawyer as such. If counsel is a reasonably effective advocate, he
    20110015‐CA                      9                 
    2013 UT App 39
    State v. Martinez
    meets constitutional standards irrespective of his client’s evaluation
    of his performance.” United States v. Cronic, 
    466 U.S. 648
    , 657 n.21
    (1984). The right to counsel is not subject to the defendant’s
    unfettered preference. “Trial courts are generally allowed
    considerable discretion in granting or denying motions to
    disqualify counsel, and such decisions will only be overturned
    when that discretion is exceeded.” Balfour, 
    2008 UT App 410
    , ¶ 11.
    ¶25 Because Defendant’s attorneys were “intimidated” by him,
    Defendant claims that they acted under a conflict of interest,
    particularly with regard to the duty of loyalty. Quoting Strickland,
    Defendant claims that “this ‘duty of loyalty’ has been described as
    ‘perhaps the most basic of counsel’s duties.’” 466 U.S. at 692.
    “[E]ven when no theory of defense is available, if the decision to
    stand trial has been made, counsel must hold the prosecution to its
    heavy burden of proof beyond a reasonable doubt.” Cronic, 
    466 U.S. at 656 n.19
    . “Of course, the Sixth Amendment does not require
    that counsel do what is impossible or unethical. If there is no bona
    fide defense to the charge, counsel cannot create one and may
    disserve the interests of his client by attempting a useless charade.”
    
    Id. ¶26
     Defendant claims that the “animosity between Defendant
    and his trial counsel resulted in the deterioration of the attorney‐
    client relationship to the point that it affected Defendant’s right to
    effective assistance of counsel.” We disagree. From an objective
    perspective, defense counsel continued to zealously represent
    Defendant, despite Defendant’s complaints and apparent efforts at
    intimidation. Although for a very brief time defense counsel
    doubted their ongoing ability to represent Defendant, defense
    counsel was always commendably cognizant of their obligation to
    “adequately and zealously represent [Defendant] in trial” “with the
    integrity of court officers and do their job like they should.”2
    2
    We also note that the improper impeachment of the
    (continued...)
    20110015‐CA                       10                
    2013 UT App 39
    State v. Martinez
    ¶27 Defendant claims on appeal that defense counsel’s
    agreement to represent Defendant after feeling intimidated by him
    “clearly would affect not only a defendant’s ability to communicate
    with his counsel, but would also affect counsel’s willingness and
    desire to act with the duty of loyalty.” It is not disputed that
    Defendant was a difficult and intimidating client. As noted, the
    trial court even went so far as to tell Defendant, “I’ve tried . . . a
    couple of hundred jury cases, and I’m telling you that you are
    being as difficult a defendant as any I have encountered[.]”
    However, once counsel voiced their concerns and determined that
    they could continue to zealously represent their client, counsel did
    so until the conclusion of trial.3
    2
    (...continued)
    convenience store clerk on the first day of trial does not suggest
    a conflict of interest. The attempted impeachment was not ad‐
    verse to Defendant’s interests but was at his specific request. See
    State v. Webb, 
    790 P.2d 65
    , 75 (Utah Ct. App. 1990) (“In order to
    show an actual conflict of interest existed, a defendant must
    point to specific instances in the record to suggest an actual
    conflict or impairment of his or her interests.”) (citations omit‐
    ted).
    3
    Defendant additionally claims that counsel’s disclosure
    of the intimidation may have been a violation of the Utah Rules
    of Professional Conduct. See Utah R. Prof’l Conduct 1.6 (relating
    to permissible attorney disclosures of information related to the
    client); 
    id.
     R. 1.7 (stating that a lawyer “shall not represent a
    client if the representation of that client may be materially lim‐
    ited . . . by the lawyer’s own interest”). However, defense coun‐
    sel, mindful of their obligations to their client, limited their
    disclosures to the court and, indeed, directed them initially to
    the presiding judge. One of the attorneys acknowledged the
    need to “continue to zealously represent our defendant. And
    because of that I can’t disclose certain information.” The court
    (continued...)
    20110015‐CA                       11                 
    2013 UT App 39
    State v. Martinez
    ¶28 Defendant claims that his counsel’s closing argument, in
    which counsel conceded Defendant’s guilt to some charges,
    indicated a clear breakdown in the attorney‐client relationship. We
    disagree. Attempted murder was by far the most serious charge
    Defendant faced at trial. Counsel may very well have made the
    tactical decision to admit guilt to the lesser offenses, on which the
    State had presented extensive evidence, and instead focus their
    efforts on seeking acquittal on the most serious charge. “[D]efense
    tactics, whereby counsel admits guilt on a lesser charge in the hope
    that the jury would then be more receptive to the claim that the
    defendant was innocent of the far more serious offense and acquit
    him thereof, is a perfectly acceptable strategy which should not be
    second guessed by the courts.” People v. Allen, 
    727 N.Y.S.2d 331
    ,
    331–32 (App. Div. 2001) (mem.) (alterations, citations, and internal
    quotation marks omitted).
    ¶29 Defendant has not demonstrated how counsel failed to
    represent his best interests at trial.4 Therefore, we are not
    persuaded that defense counsel actually labored under a conflict of
    interest. See Cuyler v. Sullivan, 
    446 U.S. 335
    , 350 (1980) (“[U]ntil a
    defendant shows that his counsel actively represented conflicting
    interests, he has not established the constitutional predicate for his
    3
    (...continued)
    then informed Defendant on the record of these discussions,
    outside the presence of the jury.
    4
    Defendant claims that counsel’s withdrawal prior to
    sentencing “indicates the severity of the conflict and that an
    actual conflict existed from the moment of disclosure until well
    after trial.” This is not the case. As explained to Defendant dur‐
    ing trial, defense counsel had a general policy to withdraw from
    a case after trial in instances where doing so might facilitate the
    assertion of an ineffective assistance claim.
    20110015‐CA                      12                 
    2013 UT App 39
    State v. Martinez
    claim of ineffective assistance.”). Defendant’s claim for ineffective
    assistance therefore fails.
    ¶30 We next address whether the trial court adequately inquired
    into Defendant’s complaints regarding his trial counsel. “[W]hen
    a defendant expresses dissatisfaction with counsel, a trial court
    must make some reasonable, non‐suggestive efforts to determine
    the nature of the defendant’s complaints.” State v. Pando, 
    2005 UT App 384
    , ¶ 24, 
    122 P.3d 672
     (citations and internal quotation marks
    omitted) (alteration in original). The court should “apprise itself of
    the facts necessary to determine whether the defendant’s
    relationship with his . . . appointed attorney has deteriorated to the
    point that sound discretion requires substitution or even to an
    extent that his . . . right to counsel would be violated but for
    substitution.” State v. Pursifell, 
    746 P.2d 270
    , 273 (Utah Ct. App.
    1987).
    ¶31 Defendant contends that the trial court perfunctorily
    dismissed his renewed motion to substitute counsel on the second
    day of trial and should have inquired more fully. However,
    Defendant’s midtrial complaint about his counsel was essentially
    a reiteration of the arguments he had made when asking for new
    counsel prior to trial. The court recognized as much when it
    indicated to Defendant that it had already denied his motion for
    new counsel. After admitting that he forgot that he had been
    present when the motion to sever had been argued and decided,
    Defendant stated, “I’ll agree to go forward with this counsel.”
    Defendant’s argument for renewing the motion was that his
    lawyers felt intimidated by him and that he felt this created a
    conflict of interest that affected their ability to communicate with
    each other. The court asked both defense attorneys if they were
    able to “vigorously represent” Defendant; they responded
    affirmatively. And their actions throughout trial, outlined in some
    detail above, speak louder than their words. We therefore conclude
    that the trial court was adequately apprised of Defendant’s
    complaints before denying Defendant’s motion for new counsel.
    20110015‐CA                      13                 
    2013 UT App 39
    State v. Martinez
    ¶32 Because we determine that Defendant’s attorneys did not
    have a conflict of interest and that the trial court adequately
    inquired into Defendant’s dissatisfaction within his counsel, we
    review the court’s ultimate denial of his motion for substitution of
    counsel only for an abuse of discretion. See State v. Scales, 
    946 P.2d 377
    , 381 (Utah Ct. App. 1997). We conclude that the trial court was
    well within its discretion in denying Defendant’s request for the
    appointment of new counsel.
    ¶33    Affirmed.
    THORNE, Judge (dissenting):
    ¶34 I respectfully dissent from the majority’s decision
    determining that the trial court was adequately apprised of
    Defendant’s complaints before it denied Defendant’s motion for
    substitution of counsel. The trial court’s failure to further inquire
    into and fully inform Defendant of the circumstances pertaining to
    the conflict of interest, are flaws affecting the framework within
    which the trial proceeded that are equivalent to structural error. See
    State v. Cruz, 
    2005 UT 45
    , ¶ 17, 
    122 P.3d 543
     (“Structural errors are
    flaws in the framework within which the trial proceeds, rather than
    simply an error in the trial process itself.” (citation and internal
    quotation marks omitted)). As a result, I would conclude that the
    trial court erred when it failed to conduct a proper inquiry into the
    conflict of interest issues.
    ¶35 “During an attorney‐client relationship, an attorney owes a
    client a fiduciary duty of loyalty, which requires the attorney to
    exercise impeccable honesty, fair dealing, and fidelity in dealings
    with the client.” Roderick v. Ricks, 
    2002 UT 84
    , ¶ 32, 
    54 P.3d 1119
    (citation and internal quotation marks omitted). “At a minimum,
    an attorney’s duty of loyalty to his or her client requires the
    attorney to refrain from acting as an advocate against the client,
    even in a case unrelated to the cause for which the attorney is
    20110015‐CA                      14                 
    2013 UT App 39
    State v. Martinez
    retained.” State v. Holland, 
    876 P.2d 357
    , 359–60 (Utah 1994). “The
    right to counsel guaranteed by the Constitution contemplates the
    services of an attorney devoted solely to the interests of his client.” 
    Id. at 359
     (additional emphasis omitted) (citation and internal
    quotation marks omitted). Likewise, the rules forbidding an
    attorney with an undisclosed conflict of interest from representing
    a client, suggest that the duty of loyalty essentially requires
    attorneys who may have divided loyalty, and thereby adversely
    affect the client, to refrain from undertaking such representation.
    Cf. Restatement (Third) of The Law Governing Lawyers § 121
    (2000) (“Unless all affected clients . . . consent . . . , a lawyer may
    not represent a client if the representation would involve a conflict
    of interest. A conflict of interest is involved if there is a substantial
    risk that the lawyer’s representation of the client would be
    materially and adversely affected by the lawyer’s own interests . . . .”
    (emphasis added)); see also id. § 121 cmt. b. (“The prohibition
    against lawyer conflicts of interest reflects several competing
    concerns. First, the law seeks to assure clients that their lawyers
    will represent them with undivided loyalty.”). Indeed, “[t]he duty
    of loyalty is so essential to the proper functioning of the judicial
    system that its faithful discharge is mandated not only by the Rules
    of Professional Conduct, but also, in criminal cases by the Sixth
    Amendment right of a criminal defendant to the effective
    assistance of counsel.” Holland, 876 P.2d at 359. “The faithful
    discharge of that duty is a vital factor both in uncovering and
    making clear to a court the truth on which a just decision depends
    and in protecting the rights of persons charged with a crime.” Id.
    ¶36 The facts of this case are, in my experience, both unique and
    troubling. On the first day of trial, one defense counsel conducted
    what the trial judge considered to be an improper impeachment
    effort.5 Later that evening, without Defendant’s knowledge, both
    5
    The prosecutor objected to defense counsel’s questioning
    and the trial court chose to admonish defense counsel in front of
    (continued...)
    20110015‐CA                         15                  
    2013 UT App 39
    State v. Martinez
    of his defense counsel engaged in ex parte communications with
    the district court’s presiding judge regarding their feelings of
    intimidation by Defendant and their concerns about their own
    ability to adequately represent Defendant. The presiding judge
    then communicated defense counsel’s conflict of interest concerns
    to the trial judge. The next morning before trial, the trial judge
    conducted an in‐chambers discussion, without including
    Defendant, regarding the events of the previous evening and
    defense counsel’s feelings of intimidation. The trial court then
    provided defense counsel with an opportunity to discuss the issue
    with one another and with the prosecution. The prosecutor spoke
    with defense counsel about the safety measures that the State could
    take to alleviate any concerns they may have and offered different
    safety scenarios.6
    ¶37 Thereafter, the court informed Defendant that his defense
    counsel had disclosed to the trial court that they were intimidated
    by him and that nonetheless the court was proceeding with trial.
    Specifically, the trial court told Defendant,
    I’ve been informed by your counsel that they
    feel intimidated by you, whether rightfully or
    wrongfully they feel intimidated in a way and have
    disclosed that intimidation and that has perhaps
    caused them to do things that they would not
    5
    (...continued)
    the jury stating that she had conducted an incorrect impeach‐
    ment. The court then excused the jury and further addressed
    defense counsel on the improper impeachment, stating “[Y]ou
    know better than that, right?” She responded, “Right.”
    6
    Defense counsel apparently accepted the prosecutor’s
    assistance, stating to the court that although they were worried
    about their own safety, “[t]he State is going to help [us] out.
    We’ll be fine.”
    20110015‐CA                     16                
    2013 UT App 39
    State v. Martinez
    otherwise do as officers of the Court. I’m thinking of
    yesterday’s impeachment, for example . . . . I don’t
    know if that’s a fair example or not. But that is an
    appropriate disclosure to place on the record.
    We’re going forward with this trial. Okay?
    After a brief discussion on the impeachment effort, Defendant
    stated that he was going to file a request for substitute counsel. In
    support of his request, Defendant initially expressed his concerns
    about defense counsel in terms of his dissatisfaction with their trial
    strategy. The trial court reminded Defendant that the court had
    previously denied Defendant’s motion for new trial on that basis.
    After further discussion about the impeachment effort, Defendant
    reiterated his request for new trial counsel, and the following
    relevant exchange occurred:
    THE DEFENDANT: I have a right, you know,
    to a fair trial. And I don’t believe I’m being
    represented to the fullest like they say—like to be
    represented. So, I have, you know, problem in
    (inaudible.)
    THE COURT: You filed a new motion. Filed a
    motion for new counsel which was denied. Are you
    looking for new counsel now?
    THE DEFENDANT: Yeah.
    THE COURT: And what would the basis be?
    THE DEFENDANT: Ineffective counsel.
    THE COURT: Well, based upon what?
    THE DEFENDANT: My lawyers, they feel
    intimidated by me, so, therefore, we have a conflict of
    20110015‐CA                      17                 
    2013 UT App 39
    State v. Martinez
    interest. So therefore, they feel they are afraid of me or
    whatever their complaints would be. So, therefore, there’s
    a conflict between me and the lawyers. So, therefore, I
    don’t see how we can, you know, communicate without me
    feeling that there’s a fear between me and them.
    (Emphasis added.)
    ¶38 The events of this case present several troubling conflict of
    interest issues pertaining to whether defense counsel’s actions
    violated their duty of loyalty to their client and whether the trial
    court properly performed its duty of inquiry. The first task is to
    consider whether defense counsel breached their duty of loyalty
    and then consider whether the trial court properly inquired into the
    potential conflict of interest issues.
    I. Defense Counsel’s Duty of Loyalty
    ¶39 First, it is apparent from the record that the loyalties of
    Defendant’s attorneys were indeed compromised as demonstrated
    by defense counsel’s actions related to their claims of intimidation
    by Defendant.7 Here, defense counsel were burdened by a conflict
    7
    The majority concludes that “defense counsel continued
    to zealously represent Defendant, despite Defendant’s complaints
    and apparent efforts at intimidation.” Supra ¶ 26. However,
    there is nothing in the record that establishes that Defendant
    actively intimidated defense counsel. There is no evidence that
    Defendant, directly or indirectly, threatened counsel either
    verbally or with physical gestures. Indeed, defense counsel
    never articulated any action taken by Defendant that caused
    counsel to feel “a sense of intimidation.” The trial court stated
    that defense counsel “couldn’t really articulate what it was, but
    that there was a sense of being compromised in the ability to
    exercise a judgment they normally exercise.” The only reference
    (continued...)
    20110015‐CA                       18                  
    2013 UT App 39
    State v. Martinez
    between Defendant’s interests and their apparent concerns about
    their own safety. Instead of addressing their conflict of interest
    concerns with Defendant, defense counsel took actions without
    Defendant’s knowledge and contrary to Defendant’s interests by
    engaging in various ex parte communications with the presiding
    judge, the trial judge, and the prosecutor. In so doing, defense
    counsel appear to have violated their duty to keep their client’s
    confidence and properly inform their client about their actions. See
    Utah R. Prof’l Conduct 1.4(a)(5) (“A lawyer shall: . . . consult with
    the client about any relevant limitation on the lawyer’s conduct
    when the lawyer knows that the client expects assistance not
    permitted by the Rules of Professional Conduct or other law.”); see
    also Restatement (Third) of The Law Governing Lawyers § 20 (2000)
    (providing that when an issue of conflict arises, the lawyer must
    consult with the client and proceed in the best interest of the client).
    ¶40 Because defense counsel failed to consult with Defendant,
    or even inform him of their actions on the conflict of interest issue,
    Defendant was uninformed and unprepared to present his request
    for substitute counsel. Based on defense counsel’s actions, I
    conclude that counsel’s personal interests diverted their efforts
    away from Defendant’s interest and may well have impaired their
    abilities to represent Defendant, thereby violating their duty of
    loyalty to Defendant.
    7
    (...continued)
    to Defendant’s behavior was during an in‐chambers discussion,
    wherein the presiding judge mentioned that defense counsel
    “indicated that there was a sense of intimidation and staring
    down episode and we did not discuss what was behind that, just
    had to do with counsel be given a response there was the stare
    down.” The circumstances surrounding Defendant’s staring are
    unknown. Defendant may have been simply spacing out, think‐
    ing, or keeping a steady gaze as a means of controlling himself.
    In any case, without more information, the stare down incident
    does not amount to an act of intimidation.
    20110015‐CA                       19                  
    2013 UT App 39
    State v. Martinez
    II. The Trial Court’s Duty of Inquiry
    ¶41 Second, once the trial court was informed about the
    potential conflict of interest between defense counsel and
    Defendant, the court had a duty to inquire into the matter with
    both counsel and Defendant. The duty of inquiry required the trial
    court to
    make some reasonable, non‐suggestive efforts to
    determine the nature of the defendant’s complaints
    and to apprise itself of the facts necessary to
    determine whether the defendant’s relationship with
    his or her appointed attorney has deteriorated to the
    point that sound discretion requires substitution or
    even to such an extent that his or her Sixth
    Amendment right would be violated but for
    substitution.
    State v. Vessey, 
    967 P.2d 960
    , 962 (Utah Ct. App. 1998) (citation and
    internal quotation marks omitted). Here, the trial court did not
    conduct a proper inquiry with defense counsel regarding their
    conflict of interest claim during the initial in‐chambers discussion
    of the matter, nor did the court inquire with Defendant about his
    relationship with his counsel after disclosure of the potential
    conflict. Without such an inquiry the trial court was unable to
    assess the situation and determine whether an actual conflict of
    interest existed.
    A. Trial Court’s Duty To Inquire Into Defense Counsel’s Conflict of
    Interest Claim
    ¶42 In this case, the trial court merely conducted perfunctory
    questioning about the potential conflict of interest with defense
    counsel. During the in‐chambers discussion, defense counsel
    expressed concerns about their ability to adequately and zealously
    represent Defendant given their claims of intimidation. In
    20110015‐CA                      20                
    2013 UT App 39
    State v. Martinez
    addressing defense counsel’s concern, the trial court did not
    inquire about the acts causing counsel’s claims of intimidation.
    Instead, the court reminded defense counsel of their duty to
    “adequately and zealously . . . represent [Defendant],” and asked
    directed questions which were not sufficient to uncover or remedy
    the potential conflict of interest. In particular, the trial court
    engaged in the following colloquy:
    THE COURT: It’s your duty [to] adequately and
    zealously . . . represent [Defendant]. And it sounds to
    me, you correct me if I am wrong, it’s not that you
    are foregoing legitimate cross‐examination, you are
    not foregoing the—and I don’t want you to answer
    this in any way that would invade the integrity of the
    attorney/client privilege or work product, that it’s not
    that you are foregoing good stuff, it’s that perhaps
    his intimidation has led you to do things that would
    otherwise be against your professional judgment.
    [DEFENSE COUNSEL]: That’s accurate, your Honor.
    A similar colloquy occurred again after Defendant requested
    substitute counsel, whereby the trial court asked one defense
    counsel, “[D]o you believe that you can vigorously represent this
    Defendant?” and, “[I]s any of this going to affect your ability to act
    as a zealous advocate?” Defense counsel responded, “Yes, your
    Honor, I can,” and, “No, your Honor, I’m still ready to go
    forward.”8
    ¶43 Neither discussion fulfilled the trial court’s duty to inquire
    into the circumstances of the potential conflict of interest with
    counsel and ensure that defense counsel could pursue their client’s
    8
    The trial court asked a similar question of defense co‐
    counsel and received a response that she too was able to act as a
    zealous advocate for Defendant.
    20110015‐CA                      21                 
    2013 UT App 39
    State v. Martinez
    best interest. The trial court’s inquiry into defense counsel’s ability
    to represent their client was deficient and in many ways similar to
    cases of failed attempts to properly rehabilitate a juror after issues
    of bias have been raised. See State v. Wach, 
    2001 UT 35
    , ¶ 33, 
    24 P.3d 948
     (“It is not enough if a juror believes that he or she can be
    impartial and fair. Indeed, this court has previously noted that [a]
    statement made by a juror that she intends to be fair and impartial
    loses much of its meaning in light of other testimony and facts
    which suggest a bias.” (citation and internal quotation marks
    omitted)). Personal interests of defense counsel “that are
    inconsistent with those of a client might significantly limit the
    lawyer’s ability to pursue the client’s interest.” Restatement (Third)
    of The Law Governing Lawyers § 125, cmt. b. (2000). In this case,
    the trial court properly explored neither defense counsel’s personal
    interests, nor the factual basis for the apparent conflict or their
    ability to represent Defendant.
    B. Trial Court’s Duty To Disclose the Potential Conflict Claim
    and Inquire Into the Matter with Defendant
    ¶44 Similarly, the trial court conducted perfunctory questioning
    about the potential conflict of interest with Defendant. When the
    trial court learned of defense counsel’s actions, and certainly once
    Defendant conveyed renewed dissatisfaction with his counsel and
    a request to change attorneys, the trial court was required to
    conduct a meaningful inquiry into the potential conflict with
    Defendant. Instead of making non‐suggestive efforts to determine
    the nature of the conflict and the relationship between defense
    counsel and Defendant, the trial court asked very direct questions
    and did not explore the issue with Defendant related to a potential
    break down in communication based on defense counsel’s feelings
    of intimidation. Then, after declaring that no conflict existed the
    trial court denied Defendant’s renewed request for substitute
    counsel. For instance, after Defendant renewed his substitute
    counsel request, the court merely inquired of defense counsel
    whether they believed that they could vigorously represent
    Defendant. See supra ¶ 42. Such questions were both rehabilitative
    20110015‐CA                       22                 
    2013 UT App 39
    State v. Martinez
    and directive, and did not explore the potential conflict. The trial
    court’s limited inquiry was not sufficient to fulfill the trial court’s
    duty to “make some reasonable, non‐suggestive efforts to determine
    the nature of the defendant’s complaints.” State v. Vessey, 
    967 P.2d 960
    , 962 (Utah Ct. App. 1998) (emphasis added) (citation and
    internal quotation marks omitted); see also 
    id.
     (“Even when the trial
    judge suspects that the defendant’s requests are disingenuous and
    designed solely to manipulate the judicial process and to delay the
    trial, perfunctory questioning is not sufficient.” (citation and
    internal quotation marks omitted)).
    ¶45 Compounding the deficiency in the trial court’s conflict of
    interest inquiry is the fact that neither defense counsel nor the trial
    court informed Defendant of the factual circumstances pertinent to
    the conflict of interest issue. Defendant was not informed about the
    other actions defense counsel took based on their feelings of
    intimidation, i.e., their ex parte communication with the presiding
    judge and defense counsel’s disclosures and subsequent
    arrangement with the prosecution for additional security measures.
    Nor was Defendant informed about defense counsel’s own
    concerns about their ability to adequately represent Defendant.
    Defense counsel had informed the court that “the bigger concern
    is just our ability to continue to adequately and zealously represent
    [Defendant] in trial.” Without such knowledge about the conflict
    of interest claim, Defendant would not have been able to, even had
    the trial court conducted a proper inquiry into the potential conflict
    of interest issue, have a meaningfully discussion with the court on
    the matter. Thus, the trial court’s duty of inquiry failed both by
    insufficiently informing Defendant of the pertinent facts and
    declining to conduct a thorough inquiry into the conflict of interest
    issue with Defendant.
    ¶46 In sum, although Defendant was given an opportunity to
    identify conflict of counsel issues, because he was not present for
    most of the relevant discussions he was not adequately informed
    of the facts, and particularly the breadth of the potential conflict,
    sufficient to provide a meaningful explanation of the conflict.
    20110015‐CA                       23                 
    2013 UT App 39
    State v. Martinez
    Moreover, the trial judge, who was aware of the factual
    circumstances related to the conflict of interest, neither adequately
    apprised Defendant of the circumstances related to the conflict
    issue nor conducted a proper follow‐up inquiry into the conflict.
    Thereafter, the trial court did not fulfill its duty to “apprise itself of
    the facts necessary to determine whether the defendant’s
    relationship with his or her appointed attorney has deteriorated to
    the point that sound discretion requires substitution.” See Vessey,
    
    967 P.2d at 962
     (citation and internal quotation marks omitted). As
    a result, I would conclude that the trial court erred in not
    conducting a more meaningful inquiry into the conflict of interest
    issue and would reverse and remand as a substantial and structural
    error, without a requirement to demonstrate prejudice. See generally
    State v. Cruz, 
    2005 UT 45
    , ¶ 17, 
    122 P.3d 543
     (“[A] structural error
    analysis presumes prejudice.”).
    20110015‐CA                        24                  
    2013 UT App 39