District Court, Ogden Department The Honorable Scott M.
Hadley No. 121900199
P. Newton, Attorney for Appellant
D. Reyes and Karen A. Klucznik, Attorneys for Appellee
Judges Michele M. Christiansen, Kate A. Toomey, and David N.
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.
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).
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.
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.
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.
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
Millerberg has presented no evidence, or argument, that any
one of the jurors was actually biased against
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.
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. Again, Millerberg cannot show any
prejudice to support his claim of ineffective assistance.
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 ...