State v. Millard
2010 UT App 355
| Utah Ct. App. | 2010Background
- Millard was convicted by jury of two counts of conspiracy to commit aggravated murder related to hiring Brinkerhoff and Desvari to harm Hyatt.
- Hyatt obtained a back child support arrearage; Millard offered $5000 to Ben Desvari to kill Hyatt.
- Ben Desvari attempted entry to Hyatt’s home; a neighbor spotted him and police were called.
- Brinkerhoff, an ex-convict, agreed to kill Hyatt in exchange for employment; he attacked Hyatt but fled when the plan failed.
- Anthony wore a wire and connected Millard to arranging a hit; the State investigated through multiple witnesses and phone records were admitted.
- The trial court dismissed the second conspiracy count after the State had presented evidence of a single conspiracy; Millard obtained new counsel and appealed on ineffective assistance grounds.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Ineffective assistance of counsel (Strickland). | State argues defense failed to meet prongs; prejudice not shown. | Millard contends counsel’s performance was deficient and prejudicial on multiple omissions. | No reversible error; no prejudice shown; Strickland not satisfied. |
| Rule 23B remand findings supported by record. | State contends findings were properly supported by the record and not clearly erroneous. | Millard asserts numerous remand findings are unsupported. | Remand findings not reversed; insufficient marshaling to challenge on appeal. |
| Admission/stipulation of phone records and objections. | State argues records were stipulated and properly admitted; objections would be futile. | Millard contends improper admission or lack of objection harmed defense. | Stipulation and admission upheld; no reversible error shown. |
| Failure to call witnesses and failure to inform Defendant of right to testify. | State asserts trial strategy supported decisions; no ineffective assistance shown. | Millard claims crucial witnesses were overlooked and right to testify was improperly handled. | Claims inadequately briefed and not established; no reversal on these grounds. |
| Other alleged witness-related failures and admission of evidence. | State maintains no deficient performance or prejudice from handling of witnesses or evidence. | Millard asserts additional deficiencies and prejudice from trial strategy. | No reversible error; ineffective assistance claims fail on lack of prejudice/briefing. |
Key Cases Cited
- State v. Barber, 206 P.3d 1223 (Utah Court of Appeals 2009) (defer to trial court on factual findings in 23B context)
- State v. Simmons, 5 P.3d 1228 (Utah Court of Appeals 2000) (ineffective assistance framework under Strickland)
- State v. Clark, 89 P.3d 162 (Utah Supreme Court 2004) (two-part Strickland test; strong presumption of reasonable performance)
- Peak Alarm Co. v. Salt Lake City Corp., 243 P.3d 1221 (Utah Supreme Court 2010) (meaningful analysis required in appellate briefing)
- Ostermiller v. Ostermiller, 233 P.3d 489 (Utah Supreme Court 2010) (advocates devil’s-advocate marshaling of evidence on appeal)
- Friends of Maple Mountain, Inc. v. Mapleton City, 228 P.3d 1238 (Utah Supreme Court 2010) (appellate marshaling requirement for factual findings)
- Lafferty v. State, 175 P.3d 530 (Utah Supreme Court 2007) (actual conflict of interest required for prejudice presumption)
- Rowley v. Marrcrest Homeowners' Ass'n, 656 P.2d 414 (Utah Supreme Court 1982) (rights to testify and waiver considerations)