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State v. Millerberg

Court of Appeals of Utah

February 23, 2018

State of Utah, Appellee,
Eric G. Millerberg, Appellant.

         Second District Court, Ogden Department The Honorable Scott M. Hadley No. 121900199

          Samuel P. Newton, Attorney for Appellant

          Sean D. Reyes and Karen A. Klucznik, Attorneys for Appellee

          Before Judges Michele M. Christiansen, Kate A. Toomey, and David N. Mortensen.

          PER CURIAM:

         ¶1 Eric G. Millerberg appeals his convictions after a jury trial. He asserts that he received ineffective assistance of counsel at trial. We disagree and affirm his convictions.

         ¶2 To establish a claim of ineffective assistance of counsel, "a defendant must show both 'that counsel's performance was deficient' and 'that the deficient performance prejudiced the defense.'" State v. Lee, 2014 UT App 4, ¶ 13, 318 P.3d 1164 (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)). To demonstrate prejudice, a defendant "must show that a reasonable probability exists that, but for counsel's error, the result would have been different." Id. (citation and internal quotation marks omitted). If an appellate court can dispose of a claim of ineffective assistance based on a lack of prejudice, appellate courts "'will do so without analyzing whether counsel's performance was professionally unreasonable.'" Id. (quoting Archuleta v. Galetka, 2011 UT 73, ¶ 42, 267 P.3d 232).

         ¶3 Millerberg first argues that his trial counsel was ineffective for not properly supporting a motion for a change of venue for trial and for not sufficiently addressing pretrial media coverage during voir dire. He contends that negative pretrial publicity affected his right to a fair and impartial jury. However, in focusing on pretrial proceedings, Millerberg cannot establish prejudice because he fails to show that any actual juror was biased.

         ¶4 A defendant has a right to trial by an impartial jury under both the United States Constitution and the Utah Constitution. See U.S. Const. amend. VI; Utah Const. art. I, § 12. Under rule 29 of the Utah Rules of Criminal Procedure, to protect a defendant's right to a fair trial the trial court may change venue if the court determines that a fair and impartial trial cannot be had in the jurisdiction where the action is pending. See Utah R. Crim. P. 29(d); State v. Widdison, 2001 UT 60, ¶ 33, 28 P.3d 1278. Trial counsel moved for a change of venue in 2013, almost a year after the charges were filed and almost a year before trial was held. The trial court denied the motion, noting that the nature of the pretrial publicity complained of was not presented to the court.

         ¶5 Millerberg argues that trial counsel provided ineffective assistance because the motion to change venue was not properly supported with specifics of the extensive media coverage portraying him in a negative light and disclosing inappropriate details regarding his criminal history, gang affiliations, and parole status. He also argues that trial counsel failed to investigate potential jurors' exposure to the media coverage during voir dire. In a pretrial setting, a trial court must "assess whether a jury selected from the prospective juror population would be reasonably likely to fall short of the standards for fairness and impartiality to which a defendant is entitled." State v. Stubbs, 2005 UT 65, ¶ 14, 123 P.3d 407. In that posture, the characteristics of the community and the possibility of bias are considerations in a prospective evaluation of the pool of potential jurors.

         ¶6 In a posttrial posture, however, the trial court's ruling on a motion to change venue-and as Millerberg alleges, whether the motion was properly supported-is no longer the relevant issue. "Instead, on direct appeal from a conviction, we implement the traditional test of 'whether [the] defendant was ultimately tried by a fair and impartial jury.'" Id. ¶ 13 (quoting Widdison, 2001 UT 60, ¶ 38). "Where the alleged harm is a tainted jury in a trial that has already taken place, the question is not a mere likelihood of bias in the jury venire; it is actual bias on the part of the jurors who actually sat." State v. Nielsen, 2014 UT 10, ¶ 23, 326 P.3d 645. Further, the "defendant has the burden of demonstrating the existence of actual prejudice." State v. MacNeill, 2016 UT App 177, ¶ 22, 380 P.3d 60 (citation and internal quotation marks omitted).

         ¶7 Millerberg has presented no evidence, or argument, that any one of the jurors was actually biased against him.[1] In fact, even the jurors who had some exposure to the media coverage indicated at voir dire that they could be impartial. Additionally, trial counsel actively participated during voir dire, investigated potential sources of bias, and passed the jury for cause. Millerberg has not shown that any juror was biased. Therefore, he has failed to show prejudice and cannot establish ineffective assistance of counsel regarding pretrial proceedings or jury selection.

         ¶8 Millerberg next argues that trial counsel was ineffective by failing to present evidence from Millerberg's computer that Millerberg contends would support his "claim that he was online while Dea Millerberg (Dea) committed the crime." He also argues that trial counsel should have obtained a forensic examination of his computer to show the time of activity.[2] Again, Millerberg cannot show any prejudice to support his claim of ineffective assistance.

         ¶9 Trial counsel issued a subpoena to Stevens-Henager College during trial. The subpoena sought login records from the date of the crime. Although the subpoena was untimely pursued, the records were obtained by a State investigator. In court-but out of the presence of the jury-the investigator testified that the computer log showed that Millerberg had ...

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