State v. Milligan

Decision Date24 February 2012
Docket NumberNo. 20090999–CA.,20090999–CA.
Citation287 P.3d 1,702 Utah Adv. Rep. 43,2012 UT App 47
PartiesSTATE of Utah, Plaintiff and Appellee, v. Anthony David MILLIGAN, Defendant and Appellant.
CourtUtah Court of Appeals

OPINION TEXT STARTS HERE

Ronald Fujino, Salt Lake City, for Appellant.

Mark L. Shurtleff and Karen A. Klucznik, Salt Lake City, for Appellee.

Before Judges DAVIS, THORNE, and CHRISTIANSEN.

AMENDED OPINION 1

DAVIS, Presiding Judge:

¶ 1 Anthony David Milligan appeals his convictions for murder, a first-degree felony, seeUtah Code Ann. § 76–5–203(3) (Supp.2011),2 and attempted murder, a second-degree felony, see id. § 76–4–101 (2008); id. § 76–4–102(2) (2003) (current version at id. § 76–4–102(1)(b)(c) (2008)); id. § 76–5–203(3) (Supp.2011). We affirm in part and reverse and remand in part.

BACKGROUND

¶ 2 On July 3, 2006, Milligan attended a party where gang members were present. Several people got into fights, and many of the people at the party were armed. One woman at the party called her boyfriend, Tevita Vaenuku, and told him that her sisters were getting jumped.” Vaenuku and several friends, including Kyle Durr, all of whom were unarmed, immediately went to the apartment where the party was being held. When these men arrived, Milligan and his co-defendant, Marco Heimuli, “ran out of the house and started blasting” their guns at them. The men in Vaenuku's group ran away, but Durr was shot in the arm, and Vaenuku was shot in the chest and died at the scene.

¶ 3 At trial, several witnesses testified about the events on the night of the party and statements Milligan had made to them about his actions. Defense counsel anticipatedthat one particular witness, testifying for the State, might tell the jury that a tattoo of a crown on Milligan's head suggested that he had committed murder. When defense counsel raised the concern, the trial court ruled, “It's more prejudicial ... than probative,” and concluded that the State could not ask about it. Although the State did not ask the witness about the tattoo during direct examination, the witness volunteered that Milligan “told [him] that he didn't think anybody should have a crown on their head unless they killed six people.” The same witness also testified that Milligan told him he had shot Vaenuku. Milligan moved for a mistrial, arguing that the statement about the tattoo ensured his conviction because Milligan “ha[d] a crown tattooed on his head and ... had throughout the proceedings.” The trial court denied the motion, explaining,

I'm not certain after having listened to all of the testimony that's come from [the witness] just how prejudicial that actually is in the context of ... [Milligan's admission to the witness of] having killed this individual. So how much more prejudicial could any additional information be beyond your client's own statement of having shot this man? ... [The statement about the tattoo] really seems to be fairly meaningless.

Ultimately, the jury convicted Milligan of both murder and attempted murder. It also determined, in a special verdict, that both crimes had been committed “by use of a dangerous weapon.”

¶ 4 At sentencing, the trial court discussed the minimum mandatory sentences for Milligan's crimes. The trial court asked counsel to “walk [the court] through” the potential sentences for the crimes with the enhancements. The State's attorney represented that with the one-year dangerous weapon enhancements on each crime, seeUtah Code Ann. § 76–3–203.8(2)(a)(i) (2008), the minimum sentence for the first-degree murder charge was six years to life and the minimum sentence for the second-degree attempted murder charge was two to fifteen years. The trial court imposed the minimum sentence for each crime and stated that the sentences would run consecutively. However, after trial, the State filed a Motion to Correct an Illegal Sentence, which pointed out that the legislature had amended the Utah Code effective May 2006, two months before the July 2006 shooting, to impose a new minimum mandatory sentence of fifteen years to life in prison for first-degree murder. See id.§ 76–5–203(3) & amend. notes (2008 & Supp. 2011). Without further hearing, the trial court amended the sentence accordingly and once again ordered that the sentences be served consecutively. Milligan appeals.

ISSUES AND STANDARDS OF REVIEW

¶ 5 First, Milligan argues that the trial court erred by refusing to grant his motion for a mistrial. [O]nce a district court has exercised its discretion and denied a motion for a mistrial, we will not reverse the court's decision unless it is plainly wrong in that the incident so likely influenced the jury that the defendant cannot be said to have had a fair trial.” State v. Allen, 2005 UT 11, ¶ 39, 108 P.3d 730 (internal quotation marks omitted).

¶ 6 Second, Milligan argues that the trial court committed plain error by amending his sentence without permitting him to defend himself at a new hearing and that his counsel performed ineffectively by failing to object to the trial court's error. “To prevail under plain error review, a defendant must demonstrate three elements”: (1) that an error occurred, (2) that “the error should have been obvious to the trial court,” and (3) “that there is a reasonable likelihood” that the outcome would have been more favorable to the defendant in the absence of the error. State v. King, 2006 UT 3, ¶ 21, 131 P.3d 202 (internal quotation marks omitted). “To establish ineffective assistance of counsel, [a defendant] must meet the heavy burden of showing that (1) trial counsel rendered deficient performance which fell below an objective standard of reasonable professional judgment, and (2) counsel's deficient performance prejudiced [the defendant].” State v. Chacon, 962 P.2d 48, 50 (Utah 1998).

ANALYSIS
I. Motion for Mistrial

¶ 7 First, Milligan argues that the trial court should have granted his motion for a mistrial because the witness improperly referred to Milligan's gang-related tattoo at trial. Milligan argues that the witness's reference to his crown tattoo and its purported meaning were highly prejudicial and precluded him from receiving a fair trial. However, “a mistrial is not required where an improper statement is not intentionally elicited, is made in passing, and is relatively innocuous in light of all the testimony presented.” Allen, 2005 UT 11, ¶ 40, 108 P.3d 730. Furthermore, in order to obtain reversal, the defendant must make some showing that the verdict was substantially influenced by the challenged testimony.” State v. Butterfield, 2001 UT 59, ¶ 47, 27 P.3d 1133 (emphasis and internal quotation marks omitted).

¶ 8 We agree with Milligan that the witness's statement regarding Milligan's tattoo was potentially prejudicial and inflammatory 3 and might have warranted a new trial under other circumstances. See State v. Duran, 2011 UT App 254, ¶ 33, 262 P.3d 468 ([T]he introduction of [excluded] evidence can be grounds for a new trial in some instances....”). However, under the circumstances of this case, we are not convinced that the trial court exceeded its discretion in denying [Milligan]'s motion for a new trial.” See id. The testimony was not intentionally elicited by the State and was a passing comment by the State's witness. See generally Allen, 2005 UT 11, ¶ 40, 108 P.3d 730. Most significantly, the statement was “relatively innocuous in light of all the testimony presented.” See id.; cf. Butterfield, 2001 UT 59, ¶ 47, 27 P.3d 1133 (rejecting the defendant's argument that a witness's reference to his criminal history was prejudicial because, given significant additional evidence of his guilt, the defendant “failed to show that there [was] a substantial likelihood that the jury would have found him not guilty had the improper statement not been made”); State v. Wach, 2001 UT 35, ¶ 46, 24 P.3d 948 (stating that the victim's improper remark that she wore a security alarm around the defendant was innocuous “given the totality of the evidence against” the defendant, such as the victim's recounting of his violence toward her); Duran, 2011 UT App 254, ¶ 38, 262 P.3d 468 (concluding that it was unlikely that the jury's verdict against the defendant was based on a witness's improper statement about his criminal history where “the evidence against [the defendant] on the count of which he was convicted was strong”).

¶ 9 At trial, the State presented strong evidence of Milligan's guilt. The witness who testified about Milligan's tattoo also testified that Milligan had told him he was the one that shot the guy” and that Milligan had written him a note admitting that he “smoked that fool.” Another witness testified that Milligan had told him that a fight with “some girls” had “escalated and [the girls] went and got some other rival gang members,” and that “when [the rival gang members] showed up [Milligan] ran out of the house and started blasting at them with a gun.” Several eyewitnesses present at the scene of the crime identified Milligan as one of the shooters. Additionally, forensic evidence tied Milligan to the gun used in the shootings. Given this overwhelming additional evidence from which the jury could have found Milligan guilty of the charged crimes, we are unconvinced that “the verdict was substantially influenced by the challenged testimony,” see Butterfield, 2001 UT 59, ¶ 47, 27 P.3d 1133 (emphasis and internal quotation marks omitted), such that Milligan “cannot be said to have had a fair trial,” see Allen, 2005 UT 11, ¶ 39, 108 P.3d 730 (internal quotation marks omitted).

II. Right to Appear and Defend

¶ 10 Next, Milligan asks that we remand this case for resentencing, arguing that the trial court erred by amending his sentence without providing him an opportunity to appear before the court and defend against the amendment. Although Milligan did not preserve this issue for appeal, he contests the amended sentence on grounds of plain error and ineffective assistance of counsel. See generally State v....

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  • State v. Bermejo
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    • Court of Appeals of Utah
    • October 22, 2020
    ...us to consider the totality of evidence against the defendant and the circumstances surrounding the improper statements. See State v. Milligan , 2012 UT App 47, ¶ 8, 287 P.3d 1 (looking to the circumstances surrounding the potentially prejudicial comments to determine whether the district c......
  • State v. Dalton
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    ...have had a fair trial.” State v. Wach, 2001 UT 35, ¶ 45, 24 P.3d 948 (citation and internal quotation marks omitted); see also State v. Milligan, 2012 UT App 47, ¶ 7, 287 P.3d 1 (“[I]n order to obtain a reversal, the defendant must make some showing that the verdict was substantially influe......
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    • Court of Appeals of Utah
    • January 29, 2015
    ...P. 22(e).¶ 15 This court addressed whether a defendant has the right to appear and defend against a corrected sentence in State v. Milligan, 2012 UT App 47, 287 P.3d 1. In that case, Milligan was convicted of murder and attempted murder. Id. ¶ 1. During sentencing, the prosecutor represente......
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    • Court of Appeals of Utah
    • January 29, 2015
    ...22(e). ¶ 15 This court addressed whether a defendant has the right to appear and defend against a corrected sentence in State v. Milligan, 2012 UT App 47, 287 P.3d 1. In that case, Milligan was convicted of murder and attempted murder. Id. ¶ 1. During sentencing, the prosecutor represented ......
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