State v. Cruz

2005 UT 45
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
State of Utah,
No. 20020735
Plaintiff and Appellee,
v.
F I L E D
Travis Javier Cruz,
Defendant and Appellant.
July 22, 2005
---
Third District, Salt Lake
The Honorable Ronald E. Nehring
No. 011905278
Attorneys: Mark L. Shurtleff, Att'y Gen., Marian Decker, Asst.
Att'y Gen., Katherine Bernards-Goodman, Salt Lake
City, for plaintiff
Kent R. Hart, Salt Lake City, for defendant
---
PARRISH, Justice:
¶1
Travis Javier Cruz ("Cruz") was convicted of operation
of a clandestine drug laboratory and possession of a controlled
substance with intent to distribute. He asks us to reverse his
convictions and to remand his case to the trial court for a new
trial. For the reasons set forth below, we affirm.
BACKGROUND
¶2
On September 27, 2000, firefighters responded to
reports of a possible house fire in one of South Jordan's
residential neighborhoods. South Jordan police officers
accompanied the firefighters to perform traffic control duties.
Upon arriving at the house, the firefighters saw white smoke
spilling out from the eaves and main door of the garage. After
unsuccessfully trying to enter the garage through the main door,
the firefighters broke down a side door and discovered that the
garage itself was full of white smoke. The firefighters entered
with breathing equipment in place and, as they made their way
through the smoke, Cruz emerged, claiming that there was nothing

wrong and that the firefighters could leave. Despite Cruz's
assurances, the firefighters asked Cruz to open the main garage
door.
¶3
Cruz complied. The resulting improvement in visibility
allowed the firefighters to make a troubling discovery: two hot
plates, plugged in and emitting the same type of smoke that had
once filled the garage; a five-gallon bucket of acid; and a
venting system made of kitty litter and white flex tubing. After
removing their masks, the firefighters also noted a distinctive
smell. From their observations, the firefighters suspected that
they had stumbled upon a meth lab.
¶4
The firefighters shared their suspicions with the
police officers who were present. In response to the
firefighters' concerns, the officers interviewed Cruz, obtained
his personal information, and used that information to determine
whether Cruz had any outstanding warrants. The officers also
obtained a search warrant for the house. The subsequent search
of the house was, to say the least, fruitful, and the officers
seized a massive amount of drug-related paraphernalia. They also
seized a number of items connecting Cruz to the house.
¶5
Cruz denied owning the house, however, and another man
present at the scene admitted living there. Some of the seized
evidence was consistent with Cruz's denial. For example, police
seized a motor vehicle certificate of title, which listed Cruz as
the owner of the named vehicle and indicated an address for Cruz
that was different from that of the searched premises.
¶6
The discovery of the meth lab and the subsequent
seizure of the aforementioned property gave rise to two
proceedings. First, the State brought a civil action against
Cruz, seeking forfeiture of the seized property (the "civil
forfeiture action"). In October 2000, Cruz filed a verified
answer in the civil forfeiture action in which he admitted owning
most of the seized property. Second, on April 10, 2001, the
State issued an arrest warrant for Cruz and charged him with
operation of a clandestine drug lab, a first degree felony, and
possession of a controlled substance with intent to distribute, a
second degree felony. Cruz pleaded not guilty, and the criminal
case against him proceeded to trial.
¶7
On the first day of trial, after the jury had been
selected and sworn in, the trial court distributed to the jurors
a set of what it termed "preliminary" jury instructions. Those
instructions were in hard copy form, and the jurors retained them
throughout the trial. Before the first witness took the stand,
No. 20020735
2

the court read the first ten instructions to the jury. Those
instructions addressed rules applicable to recesses; the roles of
the judge, jury, and lawyers; the structure of the trial; the
presumption of innocence; and general rules applicable to
evidence. In particular, instruction five noted that "[t]he
defendant is presumed to be innocent of the charge." The court
concluded its recitation of instructions one through ten at
approximately 12:20 p.m. on the first day of trial.
¶8
Later that day, Cruz's attorney stated that he had a
"concern" that two jurors had discussed the case with one
another. Apparently, it had been brought to the attention of
Cruz's attorney that one juror had speculated to another juror as
to why the first juror had been selected for the jury when
members of her family had been arrested and imprisoned for
drug-related offenses. Cruz's attorney advised the trial judge
that his "only concern" regarding this interchange was that the
jurors "were discussing the case somewhat, looking over the
information they had been given, and discussing their personal
views on the case," in violation of the trial court's instruction
that the jurors refrain from discussing the case with each other.
¶9
The trial court responded by characterizing the jurors'
comments as mere "speculati[on] about the reasons why they were
not the targets of peremptory challenges" and "speculati[on]
about certain evaluations that the lawyers may have made about
them and about the way that they might approach this case."
According to the trial court, that speculation suggested neither
that the jurors were biased nor that they were improperly
discussing the case.
¶10
When Cruz's attorney raised his "concern" about the
jurors, the trial court had not yet read preliminary instructions
eleven through eighteen to the jury. It did so at approximately
9:00 a.m. on the second day of trial. By that time, four
witnesses had finished testifying and a fifth was in the process
of doing so.
¶11
That second batch of preliminary instructions contained
four instructions pertinent to this appeal. Instruction fifteen,
entitled "Who Is Responsible to Convince the Jury," read:
The prosecution has the burden of proof.
It is the one making the accusations in this
case. The defendant is not required to prove
innocence-you must start by assuming it.
According to our law, the defendant is
presumed to be innocent unless proven guilty
3
No. 20020735

beyond a reasonable doubt. This is a humane
provision of the law intended to guard
against the danger of an innocent person
being unjustly punished.
Instruction sixteen, entitled "How Convinced Must the Jury Be
Before Deciding the Defendant Is Guilty," read:
Before you can give up your assumption
the defendant is innocent, you must be
convinced that the defendant's guilt has been
proven beyond a reasonable doubt. Proof
beyond a reasonable doubt is that degree of
proof which satisfies the mind and convinces
the understanding of reasonable persons who
are bound to act conscientiously upon it.
Instruction seventeen, entitled "What Is a Reasonable Doubt,"
read:
A reasonable doubt is one based upon
reason and common sense rather than
speculation, supposition, emotion or
sympathy. It is the kind of doubt that would
make a reasonable person hesitate to act. It
must be real and not merely imaginary. It is
such as would be retained by reasonable men
and women after a full and impartial
consideration of all the evidence, and must
arise from the evidence or lack of evidence
in the case.
Finally, instruction eighteen, entitled "How to Evaluate Doubt,"
read:
If after such full and impartial
consideration some possible doubt exists, you
must determine whether such doubt is
reasonable in light of all the evidence. Ask
yourselves if the doubt is consistent with
reason and common sense. The law does not
require that the evidence dispel all possible
or conceivable doubt, but rather that it
dispel all reasonable doubt. That is what is
meant by the phrase "proof beyond a
reasonable doubt."
No. 20020735
4

¶12
At about 11:00 a.m. on the third day of trial, after
the parties had completed their presentation of the evidence, the
court gave the jury the remaining twenty-five instructions.
Those instructions dealt predominantly with procedures for jury
deliberation and the substantive elements of the crimes with
which Cruz was charged. The instructions enumerating the
elements of Cruz's alleged offenses noted that the jury must find
each element proven beyond a reasonable doubt. Cruz objected to
neither the substance nor the timing of these instructions.
Instead, he merely objected to the lack of a lesser included
offense instruction.
¶13
After the court finished reading the remaining
instructions, the attorneys for the parties delivered their
closing arguments, and the jury left to deliberate. The jury
returned with convictions on both of the counts with which Cruz
was charged. Cruz appeals. We have jurisdiction pursuant to
Utah Code section 78-2-2(3)(i) (2002).
ANALYSIS
¶14
Cruz identifies three reasons why he should receive a
new trial. First, he argues that the trial court's reasonable
doubt instructions were constitutionally infirm because they
failed to conform to the standards articulated in State v.
Robertson, 932 P.2d 1219 (Utah 1997), overruled on other grounds
by State v. Weeks, 2002 UT 98, 61 P.3d 1000, and because the
trial court failed to reread all of the jury instructions at the
close of evidence. Second, Cruz argues that he properly raised
an allegation of jury bias and that the trial court erred in
failing to investigate that allegation. Third, Cruz argues that
his attorney rendered ineffective assistance by counseling Cruz
to falsely admit ownership of the seized property in the civil
forfeiture action and, then, by not withdrawing as counsel during
the criminal trial. Cruz contends that his attorney's withdrawal
would have enabled his attorney to take the stand and testify as
to the falsity of the admissions Cruz made in the civil
forfeiture action with respect to his ownership of the seized
property. Cruz also asserts that his attorney was ineffective in
failing to object to the content and timing of the jury
instructions. We address each of Cruz's arguments in the order
presented.
I. CRUZ'S ATTACKS ON THE JURY INSTRUCTIONS
¶15
Cruz argues that he is entitled to a new trial because
the trial court's jury instructions were constitutionally infirm.
Specifically, Cruz argues that the reasonable doubt instructions
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No. 20020735

fell short of the standard we enunciated in Robertson, 932 P.2d
1219. He also argues that the trial court erred in failing to
reread its preliminary jury instructions at the close of the
evidence.1 We address each argument in turn.
A. The Reasonable Doubt Instructions
¶16
We first address Cruz's argument that the trial court's
reasonable doubt instructions fell short of the Robertson
standard and were therefore improper. Generally, "[w]hether a
jury instruction correctly states the law presents a question of
law which we review for correctness." State v. Houskeeper, 2002
UT 118, ¶ 11, 62 P.3d 444. Cruz admits, however, that he never
objected to the substance of the trial court's reasonable doubt
instructions. That omission would normally render the
instructions reviewable for plain error, or manifest injustice,
rather than for correctness. State v. Hamilton, 2003 UT 22,
¶ 54, 70 P.3d 111; see also State v. Casey, 2003 UT 55, ¶ 40, 82
P.3d 1106 ("[I]n most circumstances the term `manifest injustice'
is synonymous with the `plain error' standard . . . ." (internal
quotations omitted)). To establish plain error, Cruz would be
required to demonstrate that "(i) [a]n error exists; (ii) the
error should have been obvious to the trial court; and (iii) the
error is harmful, i.e., absent the error, there is a reasonable
likelihood of a more favorable outcome for the appellant, or
phrased differently, our confidence in the verdict is
undermined." Id. at ¶ 41 (internal quotations omitted).
¶17
Erroneous reasonable doubt instructions, however, give
rise to structural errors, Sullivan v. Louisiana, 508 U.S. 275,
28182 (1993), which are different than garden-variety trial
errors, see Griego v. People, 19 P.3d 1, 7 (Colo. 2001).
Structural errors are flaws in the "`framework within which the
trial proceeds, rather than simply an error in the trial process
itself.'" State v. Russell, 917 P.2d 557, 560 (Utah Ct. App.
1996) (quoting Arizona v. Fulminante, 499 U.S. 279, 310 (1991)).
Because they affect the very framework of the trial, structural
errors are not subject to plain error analysis. Griego, 19 P.3d
at 7. Specifically, instead of requiring an aggrieved defendant
to prove prejudice, as a plain error analysis requires, a

1 In his opening brief, Cruz asserted that the trial court
entirely failed to read instructions eleven through eighteen,
thereby abdicating its responsibility to orally instruct the
jury. However, Cruz abandoned that argument in the face of the
State's brief, which correctly pointed out that the trial court
read instructions eleven through eighteen on the second day of
trial.
No. 20020735
6

structural error analysis presumes prejudice. State v.
Arguelles, 2003 UT 1, ¶ 94 n.23, 63 P.3d 731. Accordingly, under
normal circumstances, we would review the trial court's
reasonable doubt instructions for correctness, Houskeeper, 2002
UT 118 at ¶ 11, and remand for a new trial if we found those
instructions erroneous.
¶18
The fact that Cruz never objected to the substance of
the jury instructions, though, presents an additional wrinkle.
In Johnson v. United States, 520 U.S. 461 (1997), the United
States Supreme Court held that, where the defendant failed to
properly object at trial, rule 52(b) of the Federal Rules of
Criminal Procedure mandated plain error review, as described in
United States v. Olano, 507 U.S. 725 (1993), even if the trial
court's error was structural in nature. Johnson, 520 U.S. at
46467; see United States v. Fazal-Ur-Raheman-Fazal, 355 F.3d 40,
47 n.5 (1st Cir. 2004) (noting that, in Johnson, "the Supreme
Court assumed that an error was `structural' but nevertheless
held that, because the defendant had failed to preserve his
objection, `plain error' appellate review applied").2 Under that
rule, a defendant claiming constitutional error who did not
object at trial may only argue plain error or ineffective
assistance of counsel on appeal and thus must prove prejudice,
even if the constitutional error claimed on appeal is structural
in nature. Other state courts follow a similar rule. See, e.g.,
State v. Garcia, 597 S.E.2d 724, 745 (N.C. 2004) ("Structural
error, no less than other constitutional error, should be
preserved at trial."). Here, though, we need not decide whether
Cruz's failure to object to the reasonable doubt instructions
forecloses his claim of structural error because we conclude that
the trial court's reasonable doubt instructions were not
erroneous-the first prong in both plain error and structural
error analyses.

2 A plain error analysis under federal jurisprudence differs
slightly from the analysis under our jurisprudence. Federal Rule
of Criminal Procedure 52(b) provides that "[a] plain error that
affects substantial rights may be considered even though it was
not brought to the court's attention." Fed. R. Crim. P. 52(b).
In Olano, the Supreme Court held that federal appellate courts
may reverse on issues not raised at trial if an error was
committed that was plain and that affected substantial rights.
507 U.S. at 732. Even when those factors are present, however,
the court may exercise its discretion to correct the error only
if the error "seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings." Id. (alteration in
original) (internal quotations omitted).
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No. 20020735

¶19
In Robertson, we recognized that the test for measuring
the validity of reasonable doubt instructions, which had been
articulated by Justice Stewart in his dissent in State v.
Ireland, 773 P.2d 1375, 1381 (Utah 1989) (Stewart, J.,
dissenting), had been adopted by a majority of this court in
State v. Johnson, 774 P.2d 1141, 114749 (Utah 1989). Robertson,
932 P.2d at 1232. Under that test, reasonable doubt instructions
were required to meet the following three requirements:
First, the instruction should specifically
state that the State's proof must obviate all
reasonable doubt. Second, the instruction
should not state that a reasonable doubt is
one which would govern or control a person in
the more weighty affairs of life, as such an
instruction tends to trivialize the decision
of whether to convict. Third, it is
inappropriate to instruct that a reasonable
doubt is not merely a possibility, although
it is permissible to instruct that a fanciful
or wholly speculative possibility ought not
to defeat proof beyond a reasonable doubt.
Id. (internal quotations and citations omitted). Cruz contends
that instructions fifteen through eighteen-the trial court's
reasonable doubt instructions-ran afoul of the first Robertson
requirement in that they failed to affirmatively "state that the
State's proof must obviate all reasonable doubt."
¶20
The State invites us to reject the Robertson test in
favor of the standard adopted by the United States Supreme Court
in Victor v. Nebraska, 511 U.S. 1 (1994). In Victor, the Court
stated that
so long as the court instructs the jury on
the necessity that the defendant's guilt be
proved beyond a reasonable doubt, the
Constitution does not require that any
particular form of words be used in advising
the jury of the government's burden of proof.
Rather, taken as a whole, the instructions
[must] correctly convey the concept of
reasonable doubt to the jury.
Id. at 5 (alteration in original) (internal quotations and
citations omitted). Under Victor, reasonable doubt instructions
are unconstitutional if they allow "`a reasonable juror . . .
[to] interpret[] the instruction to allow a finding of guilt
No. 20020735
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based on a degree of proof below that required by the Due Process
Clause.'" Id. at 6 (quoting Cage v. Louisiana, 498 U.S. 39, 41
(1990), overruled on other grounds by Estelle v. McGuire, 502
U.S. 62, 72 n.4 (1991)). Conversely, so long as the reasonable
doubt instructions, "taken as a whole, . . . correctly convey[]
the concept of reasonable doubt to the jury," they pass
constitutional muster. Id. at 22 (internal quotations omitted).
¶21
In State v. Reyes, 2005 UT 33, _P.3d , which was
argued the same day as this appeal, the State also urged us to
overrule Robertson. We accepted that invitation, and pursuant to
our opinion in Reyes, the Robertson test is no longer in force.
Id. at ¶¶ 19, 30, 34. We now adhere instead to the Victor test
for assessing the validity of reasonable doubt instructions.
Simply put, we need only ask whether the instructions, taken as a
whole, correctly communicate the principle of reasonable doubt,
namely, that a defendant cannot be convicted of a crime "except
upon proof beyond a reasonable doubt of every fact necessary to
constitute the crime with which he is charged." In re Winship,
397 U.S. 358, 364 (1970).
¶22
We hold that the jury instructions given during Cruz's
trial, taken as a whole, adequately conveyed to the jury the
concept of reasonable doubt. Those instructions provided a clear
and accurate definition of proof beyond a reasonable doubt. They
also correctly stated that the prosecution carried the burden of
proof beyond a reasonable doubt. In sum, they conveyed all of
the information required by Victor-that "the court instruct[]
the jury on the necessity that the defendant's guilt be proved
beyond a reasonable doubt," 511 U.S. at 5-and they did so in a
clear and specific manner. Accordingly, the trial court's
reasonable doubt instructions were not erroneous and do not
warrant a new trial.
B. The Timing of the Jury Instructions
¶23
Having disposed of Cruz's attack on the substance of
the reasonable doubt instructions, we now turn to his claim that
the trial court erred by failing to reread its preliminary
instructions at the close of the evidence. As was the case with
his argument regarding the sufficiency of the reasonable doubt
instructions, Cruz failed to preserve this issue. Unlike the
challenge to the reasonable doubt instructions, however, this
issue does not implicate the structural error doctrine.
¶24
In Johnson v. United States, 520 U.S. 461, the United
States Supreme Court observed that it had "found such errors only
in a very limited class of cases." Id. at 468. It then listed
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No. 20020735

the instances in which it had found structural errors. Id.
While the list included erroneous reasonable doubt instructions,
it did not include erroneous timing of jury instructions. Id. at
46869. Moreover, Cruz has provided us no compelling reason to
add to that list. We therefore review the timing of the trial
court's jury instructions for plain error, which will require
Cruz to prove that the trial court committed an error that was
both obvious and prejudicial. See Casey, 2003 UT 55 at ¶ 40.
¶25
Cruz's argument, as we see it, has both an abstract and
a specific component. In the abstract, he argues that reading
all of the jury instructions at the close of evidence
crystallizes relevant issues and better equips juries to properly
resolve cases. In the context of this particular case, Cruz
argues that the evidence linking him to the house where the meth
lab was seized was hotly contested and that rereading the jury
instructions at the close of evidence would have made it clear to
the jury that there was insufficient evidence to convict.3 He
asserts that the trial court's failure to reread the instructions
was prejudicial and denied him due process.
¶26
We also addressed this issue in Reyes. There, we held
that Utah Rules of Criminal Procedure 17 and 19 gave trial courts
"discretion to determine the appropriate instructions to deliver
to the jury at the close of evidence." Reyes, 2005 UT 33 at
¶¶ 45, 49. We accordingly declined to require that trial courts
reread preliminary instructions at the close of the evidence in
every case, recognizing instead that a jury's understanding may
be aided by allowing trial courts, in their discretion, to tailor
the timing of particular jury instructions to the individual
circumstances of a particular case. Id. at ¶¶ 44-45. Requiring
a trial court to reread introductory instructions that have

3 Because the State sought to connect Cruz to the seized
meth lab on a theory of constructive possession, Cruz asserts
that the State was required "to prove that there was a sufficient
nexus between the accused and the drug to permit an inference
that the accused had both the power and the intent to exercise
dominion and control over the drug." State v. Fox, 709 P.2d 316,
319 (Utah 1985). That burden of proof, Cruz contends, required
the State to proffer "facts which permit the inference that the
accused intended to use the drugs as his or her own," id., not
simply to prove that the accused had access to the drugs. Given
that high burden of proof and the conflicting evidence connecting
Cruz to the house in which the meth lab was seized, Cruz asserts
that the trial court's failure to fully reinstruct the jury at
the close of evidence was prejudicial, as it produced an
incorrect guilty verdict.
No. 20020735
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become irrelevant by the close of evidence (like those describing
jurors' ability to take notes during trial), or even requiring a
trial court to reread instructions pertaining to "vital rights,"
id. at ¶¶ 44, 46, when those instructions have recently been
given, may "dilute [the jury's] attention to critical substantive
and procedural guidance present in other instructions," id. at
¶ 44. In short, repeating every instruction at the close of all
of the evidence may not necessarily produce better-informed
jurors, and our trial courts should have the discretion to decide
when rereading instructions will yield diminishing returns.
¶27
A trial court's decision not to reread its preliminary
instructions at the close of evidence is erroneous only if it
reflects an abuse of discretion. We have defined an "abuse of
discretion" generally as a judicial act occurring beyond "the
range of discretion allowed for the particular act under review,"
State v. Mead, 2001 UT 58, ¶ 33 n.4, 27 P.3d 1115, but we have
not yet had the opportunity to delineate the applicable "range of
discretion" for the timing of jury instructions. Nevertheless,
Reyes is again instructive.
¶28
In Reyes, we found that two facts justified the trial
court's decision not to reread its preliminary instructions at
the close of evidence. First, we noted that "less than twenty-
four hours separated the trial court's reading of the preliminary
instructions from the conclusion of the evidence." Reyes, 2005
UT 33 at ¶ 49. Second, we recognized that "the jury was provided
with a written copy of every instruction." Id. Given those
facts, we concluded that the trial court's decision "was well
within the bounds of discretion afforded by rule 17 and rule 19
[of the Utah Rules of Criminal Procedure]." Id. In other words,
declining to reread preliminary instructions after a one-day
trial in which the jurors were provided with written copies of
all the instructions fell within the "range of discretion" trial
courts may exercise in timing their jury instructions.
¶29
The facts in this case do not differ materially from
those in Reyes. The trial court finished reading the first ten
preliminary instructions to the jury at 12:20 p.m. on the first
day of trial. Instructions 11 through 18 were read on the second
day of trial. By 12:48 p.m. on the third day of trial, the jury
had gone to deliberate, having received all the instructions. In
other words, the trial court gave all the instructions in just
over forty-eight hours. While that is twice as long as the
relevant period in Reyes, it is still sufficiently short to allow
the jury to retain and recall all the instructions it received
throughout the course of the trial. Moreover, as in Reyes, each
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No. 20020735

juror had a written copy of the preliminary instructions.4
Consequently, we hold that the trial court did not abuse its
discretion in declining to reread all the instructions at the
close of evidence. Accordingly, Cruz cannot establish any error,
let alone plain error, with regard to the timing of the jury
instructions.
II. CRUZ'S ALLEGATION OF JUROR BIAS
¶30
We now turn to Cruz's allegation of juror bias. As we
noted in our recital of the facts, shortly after the beginning of
the trial, Cruz, through his attorney, expressed a concern that
the jurors had discussed the case with one another in violation
of the trial court's instruction. He stated:
My concern was[,] it was brought to my
attention that a couple of the jurors were
conversing with each other in the elevator on
the way up, back from lunch, and were
discussing--yeah, they were speculating as to
why they had been picked, and were discussing
one of the juror's I believe family, I don't
know, mother or--a couple family members had
been arrested and incarcerated for drugs.
The other juror speculated to her, "I assume
maybe they picked you because they thought
you would be sympathetic." She said, "I hope
they are not counting on that, because I had
to endure that," something like that. The
other one said, "Well, I would be
sympathetic, because I didn't really have to
deal with the issue. My mother dealt with
it." Something to that effect. My concern
is they were discussing the case somewhat,
looking over the information they had been
given, and discussing their personal views on
the case. That's my only concern. The Court
had ordered them not to discuss the case with
each other, talk with each other.
(Emphasis added.)

4 The record suggests that the jurors had only the eighteen
preliminary instructions and a few others with them throughout
the trial, not all the instructions that would eventually be
given. We think that this is immaterial, however, because Cruz
contends that it is the first eighteen "preliminary" instructions
that the trial court should have repeated to the jury.
No. 20020735
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¶31
The trial court responded by concluding that the jurors
were merely "speculating about the reasons why they were not the
targets of peremptory challenges" and "about certain evaluations
that the lawyers may have made about them and about the way that
they might approach this case." Thereafter, Cruz failed to
pursue the matter further.
¶32
On appeal, Cruz contends that he properly raised an
allegation of juror bias and that the trial court should have
investigated that allegation and dismissed the jurors. He
asserts that the trial court's failure to do so prejudiced him
and warrants a new trial. The State asserts that Cruz never
properly alleged juror bias and has accordingly waived that claim
on appeal. We agree with the State.
¶33
"As a general rule, claims not raised before the trial
court may not be raised on appeal." State v. Holgate, 2000 UT
74, ¶ 11, 10 P.3d 346. A party cannot circumvent that rule by
"mere[ly] mention[ing] . . . an issue without introducing
supporting evidence or relevant legal authority"; such a "mere
mention" "does not preserve that issue for appeal." State v.
Brown, 856 P.2d 358, 361 (Utah Ct. App. 1993) (internal
quotations omitted). The preservation requirement is based on
the premise that, "in the interest of orderly procedure, the
trial court ought to be given an opportunity to address a claimed
error and, if appropriate, correct it." Holgate, 2000 UT 74 at
¶ 11 (internal quotations omitted). Accordingly, an objection
"must at least be raised to a level of consciousness such that
the trial [court] can consider it." Brown, 856 P.2d at 361
(internal quotations omitted).
¶34
Here, Cruz explicitly stated that his "only concern"
was that the jurors were discussing the case with each other in
violation of the court's order to the contrary. The concern he
raised had nothing to do with the substance of the jurors'
comments to one another or with the degree of bias, if any, those
comments reflected. Indeed, Cruz's attorney never even mentioned
the word "bias." We conclude that Cruz's objection is properly
characterized as an objection to the jurors' conversation, not an
objection based upon alleged bias.
¶35
We acknowledge that the trial court mentioned bias in
responding to Cruz's stated concern regarding the jurors'
conversation. After concluding that the jurors were simply
speculating as to why they had been selected for service, the
trial court offered its opinion that nothing about those
speculations "suggests bias, nor does it suggest that they were
improperly discussing the case." Cruz contends that the trial
court's statement demonstrates that he raised the issue of bias
13
No. 20020735

"to a level of consciousness such that the trial [court could]
consider it," id. (internal quotations omitted), thereby
satisfying the preservation requirement.
¶36
We disagree. The fact that the trial court mentioned
the term "bias" in ruling on Cruz's objection regarding the
jurors' conversation does not establish that the trial court was
actually presented with an objection based on bias. Neither does
it establish that the objection, if made at all, was sufficiently
explicit to raise the bias issue "to a level of consciousness
such that the trial [court could] consider it."5 Id. In fact,
the record reflects that Cruz failed to pursue the bias issue
even after the court mentioned it gratuitously. Cruz never
identified the jurors who were allegedly biased, never requested
any investigation into the matter, never asked that the jurors be
disqualified, and never presented any pertinent legal argument or
authority. In short, Cruz failed to preserve the issue of jury
bias in the trial court and therefore cannot raise it on appeal.6
See id.
III. CRUZ'S CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL
¶37
Finally, Cruz contends that he is entitled to a new
trial because his attorney rendered ineffective assistance by
(1) advising Cruz to falsely admit ownership of most of the
property seized from the house; (2) not withdrawing as Cruz's
counsel during his criminal trial in the face of a conflict of

5 In State v. Taylor, 2005 UT 40, __ P.3d __, we held that
the issue of continuance was properly preserved, even though the
appellant did not ask for a continuance at trial, because,
"without invitation, the trial court turned away the option of
continuing the trial to permit [the appellant] to adjust his
defense to meet the amended date." Id. at ¶ 7. That situation
differs from the one presented in this case. In Taylor, the
trial court effectively ruled on the merits of a motion for
continuance even though the appellant did not actually make such
a motion. In contrast, the trial court in this case mentioned
bias only to clarify the narrow scope of Cruz's objection. It
did not prospectively rule on a potential motion to strike jurors
based on bias.

6 We do not review the trial court's resolution of the juror
bias issue for plain error, as we did the timing of the trial
court's jury instructions, because Cruz has neither claimed plain
error nor briefed that issue. See Bernat v. Allphin, 2005 UT 1,
¶ 38, 106 P.3d 707 (declining to address an inadequately briefed
issue).
No. 20020735
14

interest; and (3) failing to object to the timing and content of
the jury instructions.
¶38
To establish ineffective assistance of counsel, "a
defendant must show (1) that counsel's performance was so
deficient as to fall below an objective standard of
reasonableness and (2) that but for counsel's deficient
performance there is a reasonable probability that the outcome of
the trial would have been different." Myers v. State, 2004 UT
31, ¶ 20, 94 P.3d 211 (internal quotations omitted). We have
recognized a "strong presumption that counsel's conduct falls
within the wide range of reasonable professional assistance."
Id. (internal quotations omitted). Accordingly, an aggrieved
defendant bears the burden of demonstrating that the complained-
of conduct was not "sound trial strategy." Id. (internal
quotations omitted). We apply these requirements to each of
Cruz's claims of ineffective assistance.
A. Advice to Admit Ownership of Seized Property
¶39
We turn first to Cruz's argument that his attorney
rendered ineffective assistance by counseling him to falsely
admit ownership of the property seized at the house. Cruz's
attorney in the proceedings below was the same attorney who
represented him in the earlier civil forfeiture action. Cruz
argues that his attorney advised him to falsely admit ownership
of the seized property in the civil forfeiture action in order to
protect the property interests of those who actually owned the
seized property. According to Cruz, his admission of ownership
did not serve his interests and, in fact, resulted in his
conviction because it was used by the State to connect Cruz to
the house where the meth lab was located.
¶40
We disagree that Cruz's attorney rendered ineffective
assistance in this instance. We see nothing in the record to
indicate that the performance of Cruz's attorney fell "below an
objective standard of reasonableness." Myers, 2004 UT 31 at ¶ 20
(internal quotations omitted).7 To support his claim that his
attorney advised him to lie, Cruz relies on the following
exchange between his attorney and Chad Platt, the State attorney
who handled the civil forfeiture proceeding:

7 On February 18, 2003, Cruz filed a motion pursuant to rule
23B of the Utah Rules of Appellate Procedure, requesting a remand
to the district court for an evidentiary hearing and entry of
findings of fact and conclusions of law with respect to his
ineffective assistance of counsel claim. That motion was denied.
15
No. 20020735

[CRUZ'S ATTORNEY]: So the response I filed
for Mr. Cruz covers all the property, because
he is the only claimant you listed, correct?
In the answer, we say not all the property is
his, correct?
[MR. PLATT]: In your verified answer?
[CRUZ'S ATTORNEY]: Right.
[MR. PLATT]: Right. I assume that, because
you say "most." I would assume you are
saying some isn't.
. . . .
[CRUZ'S ATTORNEY]: . . . If Mr. Cruz didn't
file an answer to protect everybody's rights
that you didn't list, what would happen to
that property? If somebody didn't file an
answer to the property that was theirs, or
claim it, it would be forfeited to your
organization?
[MR. PLATT]: If nobody answered to the
complaint, right. And after a period of time
goes by, nobody answers, then at that point
what our office will do is file a motion for
default judgment saying nobody has answered.
¶41
While these comments could be read to suggest that
Cruz's attorney advised Cruz to claim ownership of seized
property that was not his, that is not the only plausible
interpretation. It is also plausible that Cruz admitted
ownership of the property because it actually did belong to him
and he wanted to protect it from forfeiture despite the potential
repercussions of that strategy in any subsequent criminal
proceeding. Accordingly, we conclude that Cruz has failed to
establish that his attorney's "performance was so deficient as to
fall below an objective standard of reasonableness." Id.
(internal quotations omitted).
¶42
Moreover, even if Cruz could establish that his
attorney performed deficiently by advising him to admit ownership
of the seized property in the civil forfeiture action, it would
not help him here. A defendant may claim ineffective assistance
of counsel only if he had a right to counsel in the first place,
Wainwright v. Torna, 455 U.S. 586, 58788 (1982) (per curiam),
and Cruz had no right to counsel in the civil forfeiture action.
No. 20020735
16

¶43
The United States Constitution contains two sources of
a right to counsel: the Fifth and Sixth Amendments. See Michigan
v. Jackson, 475 U.S. 625, 629 (1986). The United States Supreme
Court has noted that "[t]he Sixth Amendment right to counsel
attaches only at the initiation of adversary criminal
proceedings, and before proceedings are initiated a suspect in a
criminal investigation has no constitutional right to the
assistance of counsel." Davis v. United States, 512 U.S. 452,
45657 (1994) (citation omitted). In contrast, the Fifth
Amendment right to counsel attaches during custodial
interrogation, McNeil v. Wisconsin, 501 U.S. 171, 178 (1991), or
"`questioning initiated by law enforcement officers after a
person has been taken into custody or otherwise deprived of his
freedom of action in any significant way,'" Yarborough v.
Alvarado, 541 U.S. 652, 661 (2004) (quoting Miranda v. Arizona,
384 U.S. 436, 444 (1966)).
¶44
Cruz admitted ownership of the seized property in the
verified answer that he filed in the civil forfeiture action.
That answer was filed in October 2000, six months before any
criminal proceedings were initiated against him. Cruz
consequently cannot claim a Sixth Amendment right to counsel.
Moreover, because there is no allegation that Cruz was in custody
when he filed his verified answer, he cannot claim a right to
counsel under the Fifth Amendment. Without a right to counsel,
Cruz cannot claim ineffective assistance of counsel. Wainwright,
455 U.S. at 58788.
B. Failure to Withdraw as Counsel
¶45
We next address Cruz's argument that his attorney
should have withdrawn from representing him in the criminal
proceedings below. Specifically, Cruz asserts that, because the
Utah Rules of Professional Conduct prohibit an attorney from
acting as an advocate at a trial in which the attorney may be
called as a material witness, Utah R. Prof'l Conduct 3.7(a), his
attorney should have withdrawn as Cruz's counsel in the criminal
proceeding so that he could testify that he told Cruz to falsely
claim ownership of the seized property. Cruz further asserts
that his attorney refused to withdraw because his attorney wanted
to avoid being charged with perjury for advising Cruz to admit to
ownership of property that he did not own. Cruz argues that this
situation created a conflict of interest that prevented his
attorney from effectively representing him. See State v. Lovell,
1999 UT 40, ¶ 22, 984 P.2d 382 (noting that the Sixth Amendment
guarantees the right to "conflict-free representation").
¶46
We are unpersuaded because, as we have noted, there is
no definitive indication in the record suggesting that Cruz's
17
No. 20020735

attorney actually advised him to lie. Absent evidence of that
crucial fact, Cruz's attorney had no obligation to withdraw or to
take the stand in the criminal trial. In short, Cruz's argument
that his attorney had a conflict of interest is without factual
basis.
C. Failure to Object to the Content and
Timing of the Jury Instructions
¶47
We finally turn to Cruz's claim that his attorney
rendered ineffective assistance by failing to object to the
content and timing of the jury instructions. This claim is
severely undermined by our conclusion that the trial court did
not err in either the substantive content of its reasonable doubt
instructions or the timing of those instructions. Indeed, in
light of those conclusions, Cruz cannot establish that his
attorney was deficient in failing to object or that the
objections, if made, would have yielded a "reasonable
probability" of a different result. See Myers, 2004 UT 31 at
¶ 20. We therefore reject Cruz's claim that his attorney
rendered ineffective assistance by failing to object to the
content and timing of the jury instructions.
CONCLUSION
¶48
We affirm Cruz's convictions. We reject Cruz's
challenge to both the content and the timing of the jury
instructions. In Reyes, we rejected the notion that reasonable
doubt jury instructions must strictly conform to the requirements
set forth in Robertson, and we held that the timing of jury
instructions is a matter left to the sound discretion of the
trial court. We decline to consider Cruz's claim of jury bias
because he did not raise it in the trial court. Finally, Cruz's
claim of ineffective assistance of counsel fails because he has
not successfully proven that his attorney advised him to falsely
admit ownership of the seized property, he has failed to
demonstrate that counsel's failure to object to the jury
instructions constituted deficient performance and, even had he
done so, he has failed to demonstrate a "reasonable probability"
that objecting to the instructions would have yielded a different
result at trial. We accordingly affirm.
---
¶49
Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Durrant and Judge Dutson concur in Justice Parrish's
opinion.
No. 20020735
18

¶50
Having disqualified himself, Justice Nehring does not
participate herein; District Judge Roger S. Dutson sat.
19
No. 20020735