2015 UT App 187

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Plaintiff and Appellee,

v.

SERGEY TYLER MILLETT,

Defendant and Appellant.

Memorandum Decision

No. 20130791-CA

Filed August 6, 2015

Fourth District Court, Provo Department

The Honorable Claudia Laycock

No. 091402497

Paul D. Dodd and Aaron P. Dodd, Attorneys

for Appellant

Sean D. Reyes and Deborah L. Bulkeley, Attorneys

for Appellee

JUDGE MICHELE M. CHRISTIANSEN authored this Memorandum 

Decision, in which JUDGES J. FREDERIC VOROS JR. and KATE A.

TOOMEY concurred.

CHRISTIANSEN, Judge:

¶1 Sergey Tyler Millett appeals from his convictions for 

forcible sodomy and attempted rape. Millett argues that his trial 

counsel rendered ineffective assistance by failing to file a motion 

to suppress Millett’s interview with police based on 

constitutionally deficient pre-interrogation warnings. We agree, 

and we therefore reverse his convictions and remand for a new 

trial.
State v. Millett

20130791-CA 2 2015 UT App 187

BACKGROUND

¶2 Millett met a fourteen-year-old girl at a church function in 

the spring of 2009. Over the next few months, including after 

Millett turned eighteen, the two engaged in a series of sexual 

encounters involving Millett and the girl touching one another’s 

genitals. In early August, the girl went to Millett’s house, where 

they had a similar sexual encounter. The girl testified that she 

and Millett then discussed their relationship and that neither of 

them was sure that they wanted to be ‚boyfriend and 

girlfriend.‛ Millett then asked the girl for oral sex. The girl 

testified that she did ‚[n]ot immediately‛ agree to engage in oral 

sex, but she ‚changed [her] mind‛ and ‚complied.‛ Millett then 

asked the girl for sexual intercourse. She testified that Millett put 

on a condom and started to penetrate her vagina but stopped 

when she told him it hurt. A week later, Millett and the girl met 

at a park where they again touched one another’s genitals but 

did not engage in oral or vaginal sex. A few days later, the girl’s 

mother called the police to report an inappropriate relationship 

between Millett and the girl. Millett was charged with forcible 

sodomy, attempted rape, and six counts of forcible sexual abuse.

¶3 Soon thereafter, Millett was arrested on the charges and 

interviewed by Detective Gregg Ludlow in an interrogation 

room at the Utah County Jail. At the beginning of the interview, 

Detective Ludlow stated, ‚Okay. Well that’s why I’m here today 

to talk to you about because you’re in custody and I wanted to 

make sure you understand all your rights and stuff. You 

remember all that?‛ Millett responded, ‚Yeah.‛ Detective 

Ludlow then stated, ‚You have the right to remain silent and 

anything you say can and will be used against you in a court of 

law. You understand all that? Okay. You understand all of ‘em, 

right? You’re okay talking to me?‛ Millett said ‚yes.‛

¶4 During the interview, Detective Ludlow accused Millett 

of ‚throwing a pissy fit‛ after the girl initially refused to engage 

in oral sex. Millett denied that he became upset but admitted 

that after the girl refused to perform oral sex, Millett told her to 

go home and that the two were ‚done.‛
State v. Millett

20130791-CA 3 2015 UT App 187

¶5 Millett’s trial counsel filed a motion in limine to exclude 

the entire police interview based on rules 403, 404(b), and 608(b)

of the Utah Rules of Evidence. The trial judge granted the 

motion in part but allowed the jury to hear Millett’s statements 

regarding the girl. At trial, the State played parts of the interview 

for the jury and Detective Ludlow testified about the interview. 

Detective Ludlow testified that he read Millett his Miranda rights 

and that Millett waived them. Detective Ludlow also testified 

that Millett admitted to telling the girl ‚that they would be done 

if she did not give into his demands.‛

¶6 The jury was instructed that an act of forcible sodomy, 

attempted rape, or forcible sexual abuse is without consent of the 

victim when the victim is fourteen years of age or older, but 

younger than eighteen years of age, and the defendant is more 

than three years older than the victim and entices or coerces the 

victim to submit or participate. See Utah Code Ann. § 76-5-406

(LexisNexis 2008). The jury convicted Millett of forcible sodomy 

and attempted rape but acquitted him on all counts of forcible

sexual abuse. Millett appeals.

ISSUE AND STANDARD OF REVIEW

¶7 Millett argues that he was deprived of his constitutional 

right to the effective assistance of counsel. When a claim of 

ineffective assistance of counsel is raised for the first time on 

appeal, there is no lower court ruling to review and ‚we must 

decide whether [the] defendant was deprived of the effective 

assistance of counsel as a matter of law.‛ State v. Tennyson, 850 

P.2d 461, 466 (Utah Ct. App. 1993).

ANALYSIS

¶8 Millett claims he received ineffective assistance of counsel 

because his trial counsel failed to recognize that Millett did not 

receive proper Miranda warnings before his interview by police

and failed to base the motion to exclude Millett’s police 
State v. Millett

20130791-CA 4 2015 UT App 187

interview on the lack of constitutionally adequate preinterrogation warnings.

¶9 To succeed on 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.‛ Strickland v. Washington, 466 U.S. 668, 687 (1984); see 

also State v. Templin, 805 P.2d 182, 186 (Utah 1990). To establish 

that counsel’s performance was deficient, a defendant ‚must 

show that counsel’s representation fell below an objective 

standard of reasonableness.‛ Strickland, 466 U.S. at 688. This 

showing requires that the defendant overcome the ‚strong 

presumption that counsel’s conduct falls within the wide range 

of reasonable professional assistance.‛ Id. at 689. If deficiencies in 

counsel’s performance are identified, the defendant must then 

show that a reasonable probability exists that, but for counsel’s 

error, the result would have been different. Id. at 694.

Deficient Performance

¶10 Millett argues that trial counsel performed deficiently by 

failing to file a motion to suppress based on inadequate Miranda

warnings. Millett asserts that trial counsel failed to recognize 

that his interrogation was not preceded by proper Miranda

warnings and that trial counsel therefore unreasonably failed to 

file a motion to suppress on that basis.

¶11 First, trial counsel’s failure to file a motion to suppress on 

this basis is not deficient performance unless Millett’s Miranda

warnings were inadequate. A suspect ‚must be warned prior to 

any questioning that he has the right to remain silent, that 

anything he says can be used against him in a court of law, that 

he has the right to the presence of an attorney, and that if he 

cannot afford an attorney one will be appointed for him prior to 

any questioning if he so desires.‛ Miranda v. Arizona, 384 U.S. 

436, 479 (1966); see also State v. Strain, 779 P.2d 221, 223 (Utah 

1989). In Miranda, the Supreme Court held that ‚an individual 

held for police interrogation must be clearly informed that he 

has the right to consult with a lawyer and to have the lawyer 
State v. Millett

20130791-CA 5 2015 UT App 187

with him during interrogation . . . . [T]his warning is an absolute 

prerequisite to interrogation.‛ 384 U.S. at 471. ‚No amount of 

circumstantial evidence that the person may have been aware of 

this right will suffice to stand in its stead. Only through such a 

warning is there ascertainable assurance that the accused was 

aware of this right.‛ Id. at 471–72. A person subject to custodial 

interrogation is entitled to full Miranda warnings and, where 

such warnings are not given, ‚any incriminating statements 

made . . . during the custodial interrogation are excluded from 

evidence.‛ State v. Levin, 2006 UT 50, ¶ 1, 144 P.3d 1096.

¶12 Here, the record clearly demonstrates that Millett was in 

custody at the time he was interviewed by Detective Ludlow:

Millett had been arrested and was interviewed in an 

interrogation room at the Utah County Jail. While Detective 

Ludlow informed Millett of his right to remain silent and 

warned Millett that anything he said might be used against him 

in a court of law, Detective Ludlow did not inform Millett that 

he had the right to an attorney or of his right to have an attorney

appointed for him. Because Millett was in custody and Detective 

Ludlow did not fully inform Millett of his rights before 

interviewing him, the Miranda warnings provided to Millett

were incomplete and therefore inadequate.

¶13 Having concluded that Millett was subjected to custodial 

interrogation without constitutionally adequate preinterrogation warnings, we must determine whether trial 

counsel’s failure to file a motion to suppress based on the 

inadequate Miranda warnings fell below an objective standard of 

reasonableness. Strickland, 466 U.S. at 688. Although we 

recognize the strong presumption that counsel acted 

competently, ‚where a defendant can show that there was no 

conceivable legitimate tactical basis for counsel’s deficient 

actions, the first prong of Strickland is satisfied.‛ State v. Snyder, 

860 P.2d 351, 359 (Utah Ct. App. 1993).

¶14 For example, in Snyder, the defendant appealed his 

conviction of two counts of lewdness involving a child, claiming 

that he was denied the effective assistance of counsel by reason 
State v. Millett

20130791-CA 6 2015 UT App 187

of trial counsel’s failure to timely raise a Miranda objection. Id. at 

352. The defendant’s trial counsel had reviewed the videotape of 

the defendant’s police interview and had heard the highly 

unsettling and damaging statements that the defendant had 

made during the interrogation. Id. at 359. The defendant’s trial 

counsel also knew that this interview had not been preceded by 

the requisite Miranda warnings. Id. Nonetheless, the defendant’s 

trial counsel, without any compelling explanation for his delay, 

failed to timely file a motion to suppress prior to trial. Id.

Though defense counsel belatedly filed such a motion, the trial 

court denied the defendant’s motion, and his statements were 

used against him at trial, both as substantive evidence and for 

impeachment purposes. Id. at 353. The defendant was found 

guilty and appealed. Id. This court reversed the conviction, 

stating, ‚A motion to suppress was necessary to insure that [the] 

defendant’s incriminating and embarrassing admissions were 

withheld from the jury.‛ Id. at 359. ‚Given that there [was] no 

legitimate trial tactic to be served by failing to comply with the 

filing requirement‛ of the Utah Rules of Criminal Procedure, we 

concluded that counsel’s actions fell outside the wide range of 

professionally competent assistance. Id.

¶15 Just as in Snyder, we can conceive of no legitimate trial 

tactic underlying trial counsel’s failure to file a motion to 

suppress based on the inadequate Miranda warnings here. 

During Millett’s interview, he made a number of incriminating 

statements regarding his relationship with the girl. A motion to 

suppress appears to have been necessary to ensure that Millett’s 

incriminating admissions, as well as Detective Ludlow’s 

testimony about the interview, were withheld from the jury.

¶16 The State nevertheless argues that the decision not to file 

a motion to suppress was a tactical decision. The State argues 

that trial counsel had a clear strategic reason to forgo a motion to 

suppress because, had his interview been suppressed, Millett

would have had to testify at trial to support his defense that the 

girl consented to the sexual conduct. Had he done so, the State 

observes, Millett would have risked cross-examination and 
State v. Millett

20130791-CA 7 2015 UT App 187

impeachment. We are not convinced that the failure to suppress 

Millett’s admissions under Miranda was the result of any such 

strategy.

¶17 Trial counsel filed a motion in limine seeking to exclude 

the recording of Millett’s interview from evidence. While trial 

counsel based that motion on the perceived inadmissibility of 

Millett’s statements under the Utah Rules of Evidence, rather 

than under Miranda, that motion specifically sought to exclude 

the entirety of Millett’s interview from evidence. Counsel’s 

actions demonstrate a clear intent to have the interview 

excluded, belying the State’s suggestion that counsel made a 

strategic decision to use some or all of Millett’s police interview 

at trial. If trial counsel had recognized the inadequate Miranda

warnings and filed a motion to suppress, she would likely have 

been successful in preventing Millett’s self-incriminating 

statements from being admitted at trial. Further, suppression of 

the police interview would have prevented Detective Ludlow 

from testifying about the interview and testifying that Millett 

told the girl ‚that if she didn’t go along with his plans for these 

sex acts, that he was done with her.‛

¶18 The State maintains that, at trial, trial counsel deliberately 

used the contents of the interview to establish that Millett and 

the girl had a consensual relationship, to garner sympathy for

her client, to compare the relative maturity levels of Millett and 

the girl, and to impeach Detective Ludlow’s credibility. But trial 

counsel’s use of the evidence once the trial court had ruled that it 

would not be excluded appears to have been a reaction to the 

admission of Millett’s interview, not a deliberate trial strategy

that would have led to counsel’s pretrial failure to suppress the 

evidence. And had the interview been suppressed, Detective 

Ludlow would have been prevented from testifying about

Millett’s admissions in the interview altogether, eliminating the

need to impeach the detective. We therefore do not agree with 

the State that trial counsel’s failure to file a motion to suppress 

based on the inadequate Miranda warnings was a strategic 

decision.
State v. Millett

20130791-CA 8 2015 UT App 187

¶19 Trial counsel’s failure to recognize the inadequate 

Miranda warnings and to file a motion to suppress was not a 

legitimate trial tactic and fell outside the wide range of 

professionally competent assistance. We therefore conclude that

trial counsel’s performance was deficient.

Prejudice

¶20 Millett argues that there is a reasonable likelihood that he 

would have obtained a more favorable outcome if the jury had 

not heard the statements he made during his police interview or 

Detective Ludlow’s testimony about the interview. We agree.

¶21 ‚Under Strickland, even when counsel’s performance is 

inadequate, a defendant who has been convicted of a crime is 

not entitled to a new trial unless the defendant establishes that 

‘there is a reasonable probability that, absent the errors, the 

factfinder would have had a reasonable doubt respecting guilt.’‛ 

State v. Hales, 2007 UT 14, ¶ 86, 152 P.3d 321 (quoting Strickland v. 

Washington, 466 U.S. 668, 695 (1984)). ‚‘A reasonable probability 

is a probability sufficient to undermine confidence in the [jury 

verdict].’‛ Id. (alteration in original) (quoting Strickland, 466 U.S. 

at 694). ‚Because ‘[s]ome errors will have had a pervasive effect 

on the inferences to be drawn from the evidence, altering the 

entire evidentiary picture, and some will have had an isolated 

trivial effect,’ in determining the effect of the error, we ‘consider 

the totality of the evidence before the . . . jury.’‛ Id. (alteration

and omission in original) (quoting Strickland, 466 U.S. at 695–96).

¶22 To convict Millett of attempted rape and forcible sodomy, 

the State needed to prove that the girl’s participation in the 

sexual acts was nonconsensual, i.e., that her consent was enticed 

or coerced. See Utah Code Ann. § 76-5-406(11) (LexisNexis 2008). 

The State explains that at trial, its theory of lack of consent ‚was 

based mostly on coercion or enticement.‛ In support of the

charges, the State presented the girl’s testimony, her police 

statement, Detective Ludlow’s testimony, and the incriminating 

statements made by Millett during his police interview. On 

appeal, the State argues that Millett was not prejudiced by the 
State v. Millett

20130791-CA 9 2015 UT App 187

admission of his interview statements because both the girl’s 

testimony and her statements to police supported its theory that 

Millett coerced or enticed the girl to engage in oral and vaginal 

sex.

¶23 At trial, the State called the girl as its first witness. During 

direct examination, the State asked the girl to testify about the 

night when Millett asked her to engage in oral sex:

Q: [D]id the defendant, Mr. Millett, have any 

conversation with you about the status of your 

relationship?

A: Not really. He said maybe in the future, you 

know, but it was never like for sure, like, we didn’t 

know if we were going to be together or not.

. . . .

Q: Okay. After . . . you talked about your 

relationship in his backyard, . . . what happened 

next?

. . . .

A: Just what I said before. He wanted a blow 

job and I complied.

. . . .

Q: You testified that on other occasions he had 

asked you for oral sex and you had said no and 

that was the end of it, right?

A: Yes.

Q: On this occasion he asked you for a blow job 

as you said, right?

A: Uh-huh.

Q: Okay. What happened right after he asked 

you. Did you immediately comply or not?

A: Not immediately, but I did.

Q: Can you describe the process of not 

immediately?

A: I just eventually said yes.

. . . .
State v. Millett

20130791-CA 10 2015 UT App 187

Q: Okay. So after he asked you and you did not 

immediately say yes, what changed your mind or 

what occurred in those moments?

A: I just changed my mind.

Q: Was there any other conversation that led 

up to that?

A: Not really.

Q: Okay. Can you describe what you mean 

when you say not really?

A: I don’t know. We talked about our 

relationship and then I just said okay.

Q: . . . [C]an you describe anything you 

remember about that conversation about your 

relationship?

A: Oh, we just talked about whether we’d be 

boyfriend and girlfriend or not.

Q: Okay. And after talking about that, what 

happened?

A: I don’t know. We said maybe in the future.

Q: And then you complied?

A: Yes.

. . . .

Q: Did you ever stop trying to give him oral 

sex in that incident?

A: Yes, but then I just continued.

. . . .

Q: What made you continue?

A: I just decided to.

¶24 The girl testified that it was her decision to change her 

mind and that ‚nobody makes [her] do what [she doesn’t] want 

to do.‛ When asked if Millett ever told her ‚if you don’t have sex 

with me, we’re breaking up,‛ the girl responded that they were 

‚never officially together‛ and that neither she nor Millett really 

understood ‚what [their] relationship status was.‛

¶25 On redirect examination, the State moved to admit the 

girl’s initial statement made to police into evidence as a prior 
State v. Millett

20130791-CA 11 2015 UT App 187

inconsistent statement. The State called attention to the fact that 

the girl originally stated that Millett had told her ‚he didn’t want 

to be together‛ after she said she did not want to engage in oral 

sex. When questioned about Millett’s statement to her, the girl 

testified that it ‚annoyed‛ her and that it was part of the 

persuasion that caused her to reconsider her decision not to 

engage in the sexual activity.

¶26 During recross examination, Millett’s counsel asked the 

girl if it made her ‚very sad‛ that Millett became angry when 

she decided that she did not want to engage in oral sex. The girl 

responded, ‚yes.‛ She then testified that when Millett told her to 

leave, she told him ‚not until . . . [they] figure[d] this out‛ 

because she is ‚stubborn.‛ She and Millett then engaged in oral 

sex. Millett’s counsel asked the girl if she did not want to engage 

in oral sex from the beginning or just after a while. She testified 

that it was ‚kind of the whole time.‛ After Millett and the girl

attempted to have vaginal sex, she testified that she ‚asked 

[Millett] if [they] were . . . still on good terms‛ and that he said, 

‚yes.‛

¶27 The girl’s direct testimony, which was favorable to 

Millett, conflicted with her testimony on redirect examination 

and recross examination. Given the girl’s varying testimony, the 

jury would have to choose which version of her testimony to 

believe. While it is true that the girl later testified that Millett 

was angry after she said ‚‘no,’‛ that this ‚‘annoyed’‛ her, that

she did not want to give him oral sex but nevertheless complied, 

and that afterward she asked Millett if they were still on ‚‘good 

terms,’‛ the girl never testified that Millett threatened to end 

their relationship if she did not perform oral sex on him.

¶28 In light of the equivocal state of the girl’s testimony, the 

introduction of Millett’s incriminating statements and Detective 

Ludlow’s testimony about the interview ‚alter[ed] the entire 

evidentiary picture‛ before the jury. State v. Hales, 2007 UT 14, 

¶ 86, 152 P.3d 321 (citation and internal quotation marks 

omitted). The only unequivocal evidence supporting the State’s 

theory that Millett threatened to end his relationship with the 
State v. Millett

20130791-CA 12 2015 UT App 187

girl in order to entice or coerce her to engage in oral and vaginal 

sex came from Detective Ludlow’s testimony. When asked what 

he had questioned Millett about during the interview, Detective 

Ludlow responded that he ‚asked [Millett] specifically about the 

conversation that he had with [the girl] regarding him telling her 

that if she didn’t go along with his plans for these sex acts, that 

he was done with her.‛ Detective Ludlow stated, ‚[Millett] 

denied it initially, but he did admit to it.‛ Detective Ludlow also 

explicitly stated that during the interview, Millett had admitted 

to telling the girl ‚that they would be done if she did not give 

into his demands.‛ 

¶29 It was Detective Ludlow’s testimony that formed the 

State’s theory for the jury that Millett used his relationship with 

the girl to entice or coerce her into engaging in oral and vaginal 

sex. Because Millett’s interview statements and Detective 

Ludlow’s testimony ‚undoubtedly swayed the jury’s perception 

of the defendant—and not for the better—it is difficult to 

imagine how counsel’s failure to . . . file a motion to suppress did 

not substantially prejudice [Millett’s] case.‛ See State v. Snyder, 

860 P.2d 351, 360 (Utah Ct. App. 1993). Thus, the evidence that 

should have been suppressed provided the crucial evidence to 

convict Millett and ‚there is a reasonable probability that, but for 

counsel’s . . . errors, the result of the proceeding would have 

been different.‛ See State v. Ott, 2010 UT 1, ¶ 40, 247 P.3d 344 

(omission in original) (citation and internal quotation marks 

omitted). If the evidence had been properly excluded, Millett

may well have received a more favorable result at trial. See

Strickland v. Washington, 466 U.S. 668, 696 (1984); State v. Hards, 

2015 UT App 42, ¶ 18, 345 P.3d 769. We therefore conclude that 

Millett’s trial counsel rendered constitutionally ineffective 

assistance and that Millett is entitled to a new trial.

CONCLUSION

¶30 We conclude that Millett was not provided adequate 

Miranda warnings before being interviewed by police. His trial 

counsel’s failure to move to suppress the interview statements 
State v. Millett

20130791-CA 13 2015 UT App 187

on this ground constituted ineffective assistance of counsel. We 

therefore reverse Millett’s convictions for forcible sodomy and 

attempted rape, and we remand for a new trial.