State v. Millett

2015 UT App 187

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Plaintiff and Appellee,
v.
SERGEY TYLER MILLETT,
Defendant and Appellant.

Memorandum Decision
No. 20130791-CA
Filed August 6, 2015

Fourth District Court, Provo Department
The Honorable Claudia Laycock
No. 091402497

Paul D. Dodd and Aaron P. Dodd, Attorneys
for Appellant
Sean D. Reyes and Deborah L. Bulkeley, Attorneys
for Appellee

JUDGE MICHELE M. CHRISTIANSEN authored this Memorandum
Decision, in which JUDGES J. FREDERIC VOROS JR. and KATE A.
TOOMEY concurred.

CHRISTIANSEN, Judge:

¶1 Sergey Tyler Millett appeals from his convictions for
forcible sodomy and attempted rape. Millett argues that his trial
counsel rendered ineffective assistance by failing to file a motion
to suppress Millett’s interview with police based on
constitutionally deficient pre-interrogation warnings. We agree,
and we therefore reverse his convictions and remand for a new
trial.
State v. Millett

BACKGROUND

¶2 Millett met a fourteen-year-old girl at a church function in
the spring of 2009. Over the next few months, including after
Millett turned eighteen, the two engaged in a series of sexual
encounters involving Millett and the girl touching one another’s
genitals. In early August, the girl went to Millett’s house, where
they had a similar sexual encounter. The girl testified that she
and Millett then discussed their relationship and that neither of
them was sure that they wanted to be ‚boyfriend and
girlfriend.‛ Millett then asked the girl for oral sex. The girl
testified that she did ‚[n]ot immediately‛ agree to engage in oral
sex, but she ‚changed [her] mind‛ and ‚complied.‛ Millett then
asked the girl for sexual intercourse. She testified that Millett put
on a condom and started to penetrate her vagina but stopped
when she told him it hurt. A week later, Millett and the girl met
at a park where they again touched one another’s genitals but
did not engage in oral or vaginal sex. A few days later, the girl’s
mother called the police to report an inappropriate relationship
between Millett and the girl. Millett was charged with forcible
sodomy, attempted rape, and six counts of forcible sexual abuse.

¶3 Soon thereafter, Millett was arrested on the charges and
interviewed by Detective Gregg Ludlow in an interrogation
room at the Utah County Jail. At the beginning of the interview,
Detective Ludlow stated, ‚Okay. Well that’s why I’m here today
to talk to you about because you’re in custody and I wanted to
make sure you understand all your rights and stuff. You
remember all that?‛ Millett responded, ‚Yeah.‛ Detective
Ludlow then stated, ‚You have the right to remain silent and
anything you say can and will be used against you in a court of
law. You understand all that? Okay. You understand all of ‘em,
right? You’re okay talking to me?‛ Millett said ‚yes.‛

¶4 During the interview, Detective Ludlow accused Millett
of ‚throwing a pissy fit‛ after the girl initially refused to engage
in oral sex. Millett denied that he became upset but admitted
that after the girl refused to perform oral sex, Millett told her to
go home and that the two were ‚done.‛

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State v. Millett

¶5 Millett’s trial counsel filed a motion in limine to exclude
the entire police interview based on rules 403, 404(b), and 608(b)
of the Utah Rules of Evidence. The trial judge granted the
motion in part but allowed the jury to hear Millett’s statements
regarding the girl. At trial, the State played parts of the interview
for the jury and Detective Ludlow testified about the interview.
Detective Ludlow testified that he read Millett his Miranda rights
and that Millett waived them. Detective Ludlow also testified
that Millett admitted to telling the girl ‚that they would be done
if she did not give into his demands.‛

¶6 The jury was instructed that an act of forcible sodomy,
attempted rape, or forcible sexual abuse is without consent of the
victim when the victim is fourteen years of age or older, but
younger than eighteen years of age, and the defendant is more
than three years older than the victim and entices or coerces the
victim to submit or participate. See Utah Code Ann. § 76-5-406
(LexisNexis 2008). The jury convicted Millett of forcible sodomy
and attempted rape but acquitted him on all counts of forcible
sexual abuse. Millett appeals.

ISSUE AND STANDARD OF REVIEW

¶7 Millett argues that he was deprived of his constitutional
right to the effective assistance of counsel. When a claim of
ineffective assistance of counsel is raised for the first time on
appeal, there is no lower court ruling to review and ‚we must
decide whether [the] defendant was deprived of the effective
assistance of counsel as a matter of law.‛ State v. Tennyson, 850
P.2d 461, 466 (Utah Ct. App. 1993).

ANALYSIS

¶8 Millett claims he received ineffective assistance of counsel
because his trial counsel failed to recognize that Millett did not
receive proper Miranda warnings before his interview by police
and failed to base the motion to exclude Millett’s police

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State v. Millett

interview on the lack of constitutionally adequate pre-
interrogation warnings.

¶9 To succeed on 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.‛ Strickland v. Washington, 466 U.S. 668, 687 (1984); see
also State v. Templin, 805 P.2d 182, 186 (Utah 1990). To establish
that counsel’s performance was deficient, a defendant ‚must
show that counsel’s representation fell below an objective
standard of reasonableness.‛ Strickland, 466 U.S. at 688. This
showing requires that the defendant overcome the ‚strong
presumption that counsel’s conduct falls within the wide range
of reasonable professional assistance.‛ Id. at 689. If deficiencies in
counsel’s performance are identified, the defendant must then
show that a reasonable probability exists that, but for counsel’s
error, the result would have been different. Id. at 694.

Deficient Performance

¶10 Millett argues that trial counsel performed deficiently by
failing to file a motion to suppress based on inadequate Miranda
warnings. Millett asserts that trial counsel failed to recognize
that his interrogation was not preceded by proper Miranda
warnings and that trial counsel therefore unreasonably failed to
file a motion to suppress on that basis.

¶11 First, trial counsel’s failure to file a motion to suppress on
this basis is not deficient performance unless Millett’s Miranda
warnings were inadequate. A suspect ‚must be warned prior to
any questioning that he has the right to remain silent, that
anything he says can be used against him in a court of law, that
he has the right to the presence of an attorney, and that if he
cannot afford an attorney one will be appointed for him prior to
any questioning if he so desires.‛ Miranda v. Arizona, 384 U.S.
436, 479 (1966); see also State v. Strain, 779 P.2d 221, 223 (Utah
1989). In Miranda, the Supreme Court held that ‚an individual
held for police interrogation must be clearly informed that he
has the right to consult with a lawyer and to have the lawyer

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with him during interrogation . . . . [T]his warning is an absolute
prerequisite to interrogation.‛ 384 U.S. at 471. ‚No amount of
circumstantial evidence that the person may have been aware of
this right will suffice to stand in its stead. Only through such a
warning is there ascertainable assurance that the accused was
aware of this right.‛ Id. at 471–72. A person subject to custodial
interrogation is entitled to full Miranda warnings and, where
such warnings are not given, ‚any incriminating statements
made . . . during the custodial interrogation are excluded from
evidence.‛ State v. Levin, 2006 UT 50, ¶ 1, 144 P.3d 1096.

¶12 Here, the record clearly demonstrates that Millett was in
custody at the time he was interviewed by Detective Ludlow:
Millett had been arrested and was interviewed in an
interrogation room at the Utah County Jail. While Detective
Ludlow informed Millett of his right to remain silent and
warned Millett that anything he said might be used against him
in a court of law, Detective Ludlow did not inform Millett that
he had the right to an attorney or of his right to have an attorney
appointed for him. Because Millett was in custody and Detective
Ludlow did not fully inform Millett of his rights before
interviewing him, the Miranda warnings provided to Millett
were incomplete and therefore inadequate.

¶13 Having concluded that Millett was subjected to custodial
interrogation without constitutionally adequate pre-
interrogation warnings, we must determine whether trial
counsel’s failure to file a motion to suppress based on the
inadequate Miranda warnings fell below an objective standard of
reasonableness. Strickland, 466 U.S. at 688. Although we
recognize the strong presumption that counsel acted
competently, ‚where a defendant can show that there was no
conceivable legitimate tactical basis for counsel’s deficient
actions, the first prong of Strickland is satisfied.‛ State v. Snyder,
860 P.2d 351, 359 (Utah Ct. App. 1993).

¶14 For example, in Snyder, the defendant appealed his
conviction of two counts of lewdness involving a child, claiming
that he was denied the effective assistance of counsel by reason

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of trial counsel’s failure to timely raise a Miranda objection. Id. at
352. The defendant’s trial counsel had reviewed the videotape of
the defendant’s police interview and had heard the highly
unsettling and damaging statements that the defendant had
made during the interrogation. Id. at 359. The defendant’s trial
counsel also knew that this interview had not been preceded by
the requisite Miranda warnings. Id. Nonetheless, the defendant’s
trial counsel, without any compelling explanation for his delay,
failed to timely file a motion to suppress prior to trial. Id.
Though defense counsel belatedly filed such a motion, the trial
court denied the defendant’s motion, and his statements were
used against him at trial, both as substantive evidence and for
impeachment purposes. Id. at 353. The defendant was found
guilty and appealed. Id. This court reversed the conviction,
stating, ‚A motion to suppress was necessary to insure that [the]
defendant’s incriminating and embarrassing admissions were
withheld from the jury.‛ Id. at 359. ‚Given that there [was] no
legitimate trial tactic to be served by failing to comply with the
filing requirement‛ of the Utah Rules of Criminal Procedure, we
concluded that counsel’s actions fell outside the wide range of
professionally competent assistance. Id.

¶15 Just as in Snyder, we can conceive of no legitimate trial
tactic underlying trial counsel’s failure to file a motion to
suppress based on the inadequate Miranda warnings here.
During Millett’s interview, he made a number of incriminating
statements regarding his relationship with the girl. A motion to
suppress appears to have been necessary to ensure that Millett’s
incriminating admissions, as well as Detective Ludlow’s
testimony about the interview, were withheld from the jury.

¶16 The State nevertheless argues that the decision not to file
a motion to suppress was a tactical decision. The State argues
that trial counsel had a clear strategic reason to forgo a motion to
suppress because, had his interview been suppressed, Millett
would have had to testify at trial to support his defense that the
girl consented to the sexual conduct. Had he done so, the State
observes, Millett would have risked cross-examination and

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impeachment. We are not convinced that the failure to suppress
Millett’s admissions under Miranda was the result of any such
strategy.

¶17 Trial counsel filed a motion in limine seeking to exclude
the recording of Millett’s interview from evidence. While trial
counsel based that motion on the perceived inadmissibility of
Millett’s statements under the Utah Rules of Evidence, rather
than under Miranda, that motion specifically sought to exclude
the entirety of Millett’s interview from evidence. Counsel’s
actions demonstrate a clear intent to have the interview
excluded, belying the State’s suggestion that counsel made a
strategic decision to use some or all of Millett’s police interview
at trial. If trial counsel had recognized the inadequate Miranda
warnings and filed a motion to suppress, she would likely have
been successful in preventing Millett’s self-incriminating
statements from being admitted at trial. Further, suppression of
the police interview would have prevented Detective Ludlow
from testifying about the interview and testifying that Millett
told the girl ‚that if she didn’t go along with his plans for these
sex acts, that he was done with her.‛

¶18 The State maintains that, at trial, trial counsel deliberately
used the contents of the interview to establish that Millett and
the girl had a consensual relationship, to garner sympathy for
her client, to compare the relative maturity levels of Millett and
the girl, and to impeach Detective Ludlow’s credibility. But trial
counsel’s use of the evidence once the trial court had ruled that it
would not be excluded appears to have been a reaction to the
admission of Millett’s interview, not a deliberate trial strategy
that would have led to counsel’s pretrial failure to suppress the
evidence. And had the interview been suppressed, Detective
Ludlow would have been prevented from testifying about
Millett’s admissions in the interview altogether, eliminating the
need to impeach the detective. We therefore do not agree with
the State that trial counsel’s failure to file a motion to suppress
based on the inadequate Miranda warnings was a strategic
decision.

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State v. Millett

¶19 Trial counsel’s failure to recognize the inadequate
Miranda warnings and to file a motion to suppress was not a
legitimate trial tactic and fell outside the wide range of
professionally competent assistance. We therefore conclude that
trial counsel’s performance was deficient.

Prejudice

¶20 Millett argues that there is a reasonable likelihood that he
would have obtained a more favorable outcome if the jury had
not heard the statements he made during his police interview or
Detective Ludlow’s testimony about the interview. We agree.

¶21 ‚Under Strickland, even when counsel’s performance is
inadequate, a defendant who has been convicted of a crime is
not entitled to a new trial unless the defendant establishes that
‘there is a reasonable probability that, absent the errors, the
factfinder would have had a reasonable doubt respecting guilt.’‛
State v. Hales, 2007 UT 14, ¶ 86, 152 P.3d 321 (quoting Strickland v.
Washington, 466 U.S. 668, 695 (1984)). ‚‘A reasonable probability
is a probability sufficient to undermine confidence in the [jury
verdict].’‛ Id. (alteration in original) (quoting Strickland, 466 U.S.
at 694). ‚Because ‘[s]ome errors will have had a pervasive effect
on the inferences to be drawn from the evidence, altering the
entire evidentiary picture, and some will have had an isolated
trivial effect,’ in determining the effect of the error, we ‘consider
the totality of the evidence before the . . . jury.’‛ Id. (alteration
and omission in original) (quoting Strickland, 466 U.S. at 695–96).

¶22 To convict Millett of attempted rape and forcible sodomy,
the State needed to prove that the girl’s participation in the
sexual acts was nonconsensual, i.e., that her consent was enticed
or coerced. See Utah Code Ann. § 76-5-406(11) (LexisNexis 2008).
The State explains that at trial, its theory of lack of consent ‚was
based mostly on coercion or enticement.‛ In support of the
charges, the State presented the girl’s testimony, her police
statement, Detective Ludlow’s testimony, and the incriminating
statements made by Millett during his police interview. On
appeal, the State argues that Millett was not prejudiced by the

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admission of his interview statements because both the girl’s
testimony and her statements to police supported its theory that
Millett coerced or enticed the girl to engage in oral and vaginal
sex.

¶23 At trial, the State called the girl as its first witness. During
direct examination, the State asked the girl to testify about the
night when Millett asked her to engage in oral sex:

Q: [D]id the defendant, Mr. Millett, have any
conversation with you about the status of your
relationship?
A: Not really. He said maybe in the future, you
know, but it was never like for sure, like, we didn’t
know if we were going to be together or not.
....
Q: Okay. After . . . you talked about your
relationship in his backyard, . . . what happened
next?
....
A: Just what I said before. He wanted a blow
job and I complied.
....
Q: You testified that on other occasions he had
asked you for oral sex and you had said no and
that was the end of it, right?
A: Yes.
Q: On this occasion he asked you for a blow job
as you said, right?
A: Uh-huh.
Q: Okay. What happened right after he asked
you. Did you immediately comply or not?
A: Not immediately, but I did.
Q: Can you describe the process of not
immediately?
A: I just eventually said yes.
....

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Q: Okay. So after he asked you and you did not
immediately say yes, what changed your mind or
what occurred in those moments?
A: I just changed my mind.
Q: Was there any other conversation that led
up to that?
A: Not really.
Q: Okay. Can you describe what you mean
when you say not really?
A: I don’t know. We talked about our
relationship and then I just said okay.
Q: . . . [C]an you describe anything you
remember about that conversation about your
relationship?
A: Oh, we just talked about whether we’d be
boyfriend and girlfriend or not.
Q: Okay. And after talking about that, what
happened?
A: I don’t know. We said maybe in the future.
Q: And then you complied?
A: Yes.
....
Q: Did you ever stop trying to give him oral
sex in that incident?
A: Yes, but then I just continued.
....
Q: What made you continue?
A: I just decided to.

¶24 The girl testified that it was her decision to change her
mind and that ‚nobody makes [her] do what [she doesn’t] want
to do.‛ When asked if Millett ever told her ‚if you don’t have sex
with me, we’re breaking up,‛ the girl responded that they were
‚never officially together‛ and that neither she nor Millett really
understood ‚what [their] relationship status was.‛

¶25 On redirect examination, the State moved to admit the
girl’s initial statement made to police into evidence as a prior

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inconsistent statement. The State called attention to the fact that
the girl originally stated that Millett had told her ‚he didn’t want
to be together‛ after she said she did not want to engage in oral
sex. When questioned about Millett’s statement to her, the girl
testified that it ‚annoyed‛ her and that it was part of the
persuasion that caused her to reconsider her decision not to
engage in the sexual activity.

¶26 During recross examination, Millett’s counsel asked the
girl if it made her ‚very sad‛ that Millett became angry when
she decided that she did not want to engage in oral sex. The girl
responded, ‚yes.‛ She then testified that when Millett told her to
leave, she told him ‚not until . . . [they] figure[d] this out‛
because she is ‚stubborn.‛ She and Millett then engaged in oral
sex. Millett’s counsel asked the girl if she did not want to engage
in oral sex from the beginning or just after a while. She testified
that it was ‚kind of the whole time.‛ After Millett and the girl
attempted to have vaginal sex, she testified that she ‚asked
[Millett] if [they] were . . . still on good terms‛ and that he said,
‚yes.‛

¶27 The girl’s direct testimony, which was favorable to
Millett, conflicted with her testimony on redirect examination
and recross examination. Given the girl’s varying testimony, the
jury would have to choose which version of her testimony to
believe. While it is true that the girl later testified that Millett
was angry after she said ‚‘no,’‛ that this ‚‘annoyed’‛ her, that
she did not want to give him oral sex but nevertheless complied,
and that afterward she asked Millett if they were still on ‚‘good
terms,’‛ the girl never testified that Millett threatened to end
their relationship if she did not perform oral sex on him.

¶28 In light of the equivocal state of the girl’s testimony, the
introduction of Millett’s incriminating statements and Detective
Ludlow’s testimony about the interview ‚alter[ed] the entire
evidentiary picture‛ before the jury. State v. Hales, 2007 UT 14,
¶ 86, 152 P.3d 321 (citation and internal quotation marks
omitted). The only unequivocal evidence supporting the State’s
theory that Millett threatened to end his relationship with the

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girl in order to entice or coerce her to engage in oral and vaginal
sex came from Detective Ludlow’s testimony. When asked what
he had questioned Millett about during the interview, Detective
Ludlow responded that he ‚asked [Millett] specifically about the
conversation that he had with [the girl] regarding him telling her
that if she didn’t go along with his plans for these sex acts, that
he was done with her.‛ Detective Ludlow stated, ‚[Millett]
denied it initially, but he did admit to it.‛ Detective Ludlow also
explicitly stated that during the interview, Millett had admitted
to telling the girl ‚that they would be done if she did not give
into his demands.‛

¶29 It was Detective Ludlow’s testimony that formed the
State’s theory for the jury that Millett used his relationship with
the girl to entice or coerce her into engaging in oral and vaginal
sex. Because Millett’s interview statements and Detective
Ludlow’s testimony ‚undoubtedly swayed the jury’s perception
of the defendant—and not for the better—it is difficult to
imagine how counsel’s failure to . . . file a motion to suppress did
not substantially prejudice [Millett’s] case.‛ See State v. Snyder,
860 P.2d 351, 360 (Utah Ct. App. 1993). Thus, the evidence that
should have been suppressed provided the crucial evidence to
convict Millett and ‚there is a reasonable probability that, but for
counsel’s . . . errors, the result of the proceeding would have
been different.‛ See State v. Ott, 2010 UT 1, ¶ 40, 247 P.3d 344
(omission in original) (citation and internal quotation marks
omitted). If the evidence had been properly excluded, Millett
may well have received a more favorable result at trial. See
Strickland v. Washington, 466 U.S. 668, 696 (1984); State v. Hards,
2015 UT App 42, ¶ 18, 345 P.3d 769. We therefore conclude that
Millett’s trial counsel rendered constitutionally ineffective
assistance and that Millett is entitled to a new trial.

CONCLUSION

¶30 We conclude that Millett was not provided adequate
Miranda warnings before being interviewed by police. His trial
counsel’s failure to move to suppress the interview statements

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on this ground constituted ineffective assistance of counsel. We
therefore reverse Millett’s convictions for forcible sodomy and
attempted rape, and we remand for a new trial.

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