Defendant Must Demonstrate Prejudice to Prevail on a Claim of Ineffective Assistance

State v. Millard, 2010 UT App 355 (Utah Court of Appeals December 16, 2010).

Millard, convicted of conspiracy to commit aggravated murder, requested a new trial because of ineffective assistance of counsel.  A 23B hearing was held and the request denied.  Millard appealed.  To prevail on an ineffective assistance claim a defendant must show deficient work by the attorney and that there is a reasonable probability that but for counsel’s mistake a different outcome would have resulted (i.e. the attorney acts prejudiced his case).

Millard asserted five claims of ineffective assistance.  (1) Counsel promised to call certain witnesses whom were never called.  However, Defendant failed to show the significance of the omitted testimony or any prejudice from the unfulfilled promise.  (2) Counsel failed to make certain objections to keep out otherwise inadmissible evidence.  Defendant again failed to show how it prejudiced his case.  (3) Counsel failed to inform him of his right to testify.  In a 23B hearing for a new trial, the trial court found that Counsel had informed Defendant, and that he decided not to testify.  (4) Counsel failed to investigate possible witnesses.  However, in the 23B hearing, it was determined that counsel had investigated many of the witnesses and claims that Defendant asserts on appeal; and based on counsel’s investigations ,they made strategic decisions not to call certain witnesses.  Lastly, (5) Defense counsel admitted to certain allegations damaging defendant’s case.  On this matter, Defendant fails to demonstrate how the admission damaged his case.

Because defendant failed to show that attorney error prejudiced his case and his failure to properly brief other allegations the ruling of the trial court is affirmed.

Full Decision available at http://www.utcourts.gov/opinions/appopin/millard121610.pdf