State v. Millerberg, 414 P.3d 1106

Background

Eric G. Millerberg was convicted by a jury of crimes related to the death of the victim; he appealed claiming ineffective assistance of trial counsel.
Millerberg argued counsel failed to properly support a pretrial motion for change of venue and inadequately addressed pretrial media exposure during voir dire.
He also argued counsel failed to obtain/forensically examine computer login records that he said would corroborate an online alibi, and failed to move for a directed verdict based on insufficient evidence (both injecting the victim and cause of death).
Trial counsel subpoenaed college login records during trial; records showed Millerberg was logged into the college homepage for about forty-six minutes but did not include timestamps and were not inconsistent with prosecution testimony.
The medical examiner could not state cause of death to medical certainty due to decomposition but testified that drug levels in muscle tissue were sufficient to be lethal and that drug overdose was the best explanation.
The appellate court assessed prejudice under Strickland and concluded Millerberg failed to show actual juror bias, prejudice from the computer-evidence issue, or that a directed-verdict motion would have succeeded; convictions were affirmed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether counsel was ineffective for not adequately supporting a change-of-venue motion/voir dire about publicity	Millerberg: counsel failed to document extensive negative media and to probe juror exposure, so jury was likely biased	State: voir dire showed jurors could be impartial; no evidence any seated juror was actually biased	Counsel not ineffective; no prejudice shown because no actual juror bias was demonstrated
Whether counsel was ineffective for failing to obtain/forensically analyze computer login data sooner	Millerberg: a forensic exam would show he was online when the crime occurred, providing an alibi	State: records obtained showed login presence but no timestamps and were consistent with Dea’s testimony and Millerberg’s own statements	Counsel not ineffective; records were not exculpatory and no prejudice shown
Whether counsel was ineffective for not moving for a directed verdict on injection evidence	Millerberg: evidence insufficient to prove he injected the victim	State: eyewitness testimony (Dea) saw preparation and at least one injection; inmate admission supported injection	Counsel not ineffective; evidence sufficient that a reasonable jury could find injection beyond a reasonable doubt
Whether counsel was ineffective for not moving for a directed verdict on cause of death	Millerberg: ME’s certificate said “undetermined” and decomposition prevents medical certainty	State: ME testified drug levels were sufficient to be lethal and that overdose was the best explanation	Counsel not ineffective; evidence sufficed to survive directed-verdict motion

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-part ineffective-assistance test: deficient performance and prejudice)
State v. Lee, 318 P.3d 1164 (Utah Ct. App. 2014) (prejudice standard under Strickland applied on appeal)
Archuleta v. Galetka, 267 P.3d 232 (Utah 2011) (appellate courts may dispose on prejudice without first finding deficient performance)
State v. Widdison, 28 P.3d 1278 (Utah 2001) (change-of-venue standards and assessing fairness of trial locale)
State v. Stubbs, 123 P.3d 407 (Utah 2005) (posttrial review asks whether the actual jury was biased, not merely the venire)
State v. Nielsen, 326 P.3d 645 (Utah 2014) (focus on actual juror bias in posttrial venue/bias claims)
State v. MacNeill, 380 P.3d 60 (Utah Ct. App. 2016) (defendant bears burden to demonstrate actual prejudice)
State v. Wallace, 55 P.3d 1147 (Utah Ct. App. 2002) (failure to raise futile motions does not constitute ineffective assistance)
State v. McCallie, 369 P.3d 103 (Utah Ct. App. 2016) (directed-verdict standard: whether some evidence supports each element)