State v. Millerberg

2018 UT App 32

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
ERIC G. MILLERBERG,
Appellant.

Per Curiam Opinion
No. 20140326-CA
Filed February 23, 2018

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
State v. Millerberg

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

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State v. Millerberg

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,

1. Millerberg argues that the trial court erred in denying funding
for an investigator to interview the jurors to determine if
exposure to media coverage resulted in bias. In his initial motion
for remand under rule 23B of the Utah Rules of Appellate
Procedure, Millerberg raised the funding issue in connection
with a claim of juror bias. This court denied the rule 23B motion
without prejudice on the issue of juror bias because it was not
properly supported. However, we remanded to the trial court
for reconsideration of the funding request. After further
proceedings in the trial court, Millerberg’s appellate counsel
filed a suggestion of mootness on the funding issue, stating that
an investigator had completed the work and had been paid.
Consequently, any issue regarding funding for an investigator to
interview jurors has been waived.

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State v. Millerberg

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

2. In Millerberg’s rule 23B motion, he also requested funding for
an examination of his computer. In contrast to the juror bias
issue, which was denied without prejudice pending
reconsideration of funding, this court denied remand on the
computer issue with prejudice. Millerberg failed to provide an
affidavit that supported the need for an examination of his
computer. He also did not allege facts that showed prejudice,
because his claims of being on the computer were not
inconsistent with the timing of events or his own statements to
the police and other witnesses regarding his computer use.
Millerberg later filed an addendum to his rule 23B motion that
included his affidavit and other materials he argues would
support a remand and requested reconsideration of the motion.
The addendum has previously been stricken and the request for
reconsideration is denied.

20140326-CA 4 2018 UT App 32
State v. Millerberg

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
checked his grades and was otherwise logged on to the college
home page for about forty-six minutes.

¶10 Trial counsel pursued the records in an effort to impeach
Dea’s testimony and timeline, and to essentially provide an alibi
for Millerberg if it could be shown that he was actively on the
computer at relevant times. However, the records obtained did
not indicate the time of login, and regardless, were not
inconsistent with Dea’s testimony or Millerberg’s own
statements to police. Millerberg told the police and other
witnesses that he was doing classwork online until Dea and
Victim returned from an errand and then had logged off and
gone to bed. The records obtained were not exculpatory or even
relevant. In fact, although they were obtained before the end of
trial, the records were not presented to the jury. As a result, there
is no prejudice shown by failing to obtain the records sooner
than during trial. Accordingly, his claim of ineffective assistance
of counsel regarding pursuing computer records fails.

¶11 Finally, Millerberg contends that trial counsel was
ineffective because counsel did not move for a directed verdict.
Millerberg argues that the State’s evidence was insufficient to
establish that he injected Victim with drugs and was insufficient
to establish cause of death. However, Millerberg misstates the
evidence and ignores the whole evidentiary context in his
arguments.

¶12 Trial counsel’s failure to make motions “which would be
futile if raised does not constitute ineffective assistance.” State v.
Wallace, 2002 UT App 295, ¶ 22, 55 P.3d 1147. In evaluating
whether a motion for directed verdict would be successful, this
court reviews the evidence and all reasonable inferences to be
drawn therefrom, and assesses whether “some evidence exists
from which a reasonable jury could find that the elements of the
crime had been proven beyond a reasonable doubt.” State v.

20140326-CA 5 2018 UT App 32
State v. Millerberg

McCallie, 2016 UT App 4, ¶ 39, 369 P.3d 103. The evidence
presented was sufficient for a jury to find that Millerberg
injected Victim and that a drug overdose caused her death. A
motion for directed verdict would have been futile given the
evidence presented.

¶13 Millerberg argues that the evidence was insufficient to
show that he injected Victim with drugs. However, Dea testified
that she saw Millerberg prepare syringes and that Millerberg
administered the shots to Victim. Dea directly saw the injection
into Victim’s neck. For two other shots, she saw Millerberg bend
over Victim, although she did not see the injection site. The
reasonable inference, however, is that Millerberg injected the
syringe into Victim, particularly in light of Victim’s lack of
experience with intravenous drug use. In addition, Millerberg
admitted to a cellmate that he had injected Victim with drugs. In
sum, there was sufficient evidence that Millerberg injected
Victim to survive a motion for directed verdict on that issue.

¶14 Millerberg also contends that the medical examiner’s
testimony was insufficient to establish cause of death. The ME
indicated the cause and manner of death as “undetermined” on
Victim’s death certificate. ME testified that he could not rule out
other possibilities of cause of death to a medical certainty due to
the advanced state of decomposition of the body. However, ME
also testified that the level of drugs in Victim’s muscle tissues
was sufficient to be lethal. ME stated that “death as a direct
result of these drugs is a very adequate explanation of the death
and quite honestly in this case is the best explanation there is.”
With that testimony, the evidence was sufficient to survive a
motion for directed verdict regarding cause of death.

¶15 In sum, Millerberg has not shown that he received
ineffective assistance of trial counsel. Affirmed.

20140326-CA 6 2018 UT App 32