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Lynch v. State

Court of Appeals of Utah

May 25, 2017

Sherman A. Lynch, Appellant,
State of Utah, Appellee.

         Third District Court, Salt Lake Department The Honorable Deno G. Himonas No. 110913691

          Scott S. Bell, Michael W. Young, and Alan S. Mouritsen, Attorneys for Appellant

          Sean D. Reyes, Ryan D. Tenney, and Daniel W. Boyer, Attorneys for Appellee

          Judge Michele M. Christiansen authored this Opinion, in which Judges Gregory K. Orme and J. Frederic Voros Jr. concurred.


          CHRISTIANSEN, Judge.

         ¶1 Sherman A. Lynch appeals the postconviction court's dismissal of his petition filed pursuant to the Utah Post-Conviction Remedies Act (the PCRA). We affirm.


         ¶2 On the afternoon of October 3, 2007, Patricia Rothermich (Victim) was out walking when a vehicle struck her from behind, splitting her calf open and catapulting her over forty feet.[1] The driver of the vehicle did not stop and there were no other witnesses. Victim died on the way to the hospital.

         ¶3 Victim was Lynch's wife. In the days following Victim's death, Lynch appeared on television, asking for the public's help in finding the driver of a white truck or van police believed to have been involved in the collision. Lynch's then-girlfriend saw these broadcasts and, apparently distressed by the discovery that he was married, informed police that she had helped Lynch buy a white truck at an auction and that he kept it in a garage near his house.

         ¶4 Police searched the garage and found scraps of carpet with white spray paint on them, as well as metal shavings. The truck was not there, but the owner of the garage stated that Lynch had kept a white truck in the garage before Victim's death, that Lynch had painted over rust spots on the truck with spray paint, and that, at least on one occasion, the truck's hood had blown open while Lynch was driving it.

         ¶5 A white truck was later discovered in a different garage at an abandoned property. That truck's Vehicle Identification Number matched the one on the truck Lynch had bought at auction. One of the investigating detectives, Detective Anderson, examined the truck and saw "exactly the kind of damage" he "expect[ed] to see" from a collision like the one that killed Victim. He also noted that the truck's hood did not close properly and that holes had been drilled into the truck's front frame. Detective Anderson saw a tow hook and a bug guard spoiler on the front of the truck, either of which he thought might have caused Victim's calf injury. DNA from an unidentifiable female was found on the truck's spoiler. Inside the engine block, officers found a zip-tie fragment with "random fracture lines" that "match[ed] up perfectly" with the fracture lines on one of several zip ties found at the scene of the collision.

         ¶6 Officers also contacted the previous owner of the truck, who confirmed that the hood of the truck did not latch properly but stated that he had not used zip ties to hold the hood down. The previous owner examined the truck and noted several changes since it had been sold: the rust spots had been covered by white paint, an antenna was missing, the windshield was cracked, the hood had sustained new damage, and there were "two holes in the sheet metal under the hood along the front of the engine compartment."

         ¶7 The police then interviewed Lynch, who initially denied owning any vehicles besides his van, purchasing any vehicles recently, or keeping vehicles in the garage near his house. However, when the interviewing officer asked Lynch about a truck, Lynch admitted that he had bought a truck for his teenaged son. When asked where that truck was, Lynch claimed that it had broken down on the freeway several weeks earlier and that he had given the truck to a passerby named "Chuck" who stopped to help.[2]

         ¶8 Officers searched Lynch's home and discovered five white spray paint cans. They also found the truck's title and registration behind the license plate of Lynch's van. And a forensic analyst (the Paint Analyst) testified that the paint fragments found on Victim's clothing could have come from the same source as the original paint on the truck because the fragments were of the "same distinct type of paint as that on the hood of the truck" and matched it on multiple microscopic layers. The Paint Analyst also testified that paint smears found elsewhere on Victim's clothing were from the "same distinct type" of spray paint as had been more recently used on the truck.

         ¶9 Lynch was ultimately convicted of murder and obstruction of justice in connection with the death of Victim. Following Lynch's convictions, trial counsel withdrew from the case, and Lynch moved for a new trial on two main grounds: (1) ineffective assistance of trial counsel and (2) newly discovered evidence. Specifically, Lynch asserted that trial counsel were ineffective because they "did not share discovery with him, did not adequately consult with [him] prior to or during the trial, did not pursue investigative leads, and did not properly advise [him] prior to or during the trial." Lynch further asserted that he had located a witness-an individual named Ashe-"with evidence that strongly suggests that neither [he] nor his truck was involved in the hit and run which claimed the life of [Victim]" and that this newly discovered evidence warranted a new trial.

         ¶10 In support of his motion, Lynch submitted "a scale diagram showing the locations of the injuries, the paint analysis done on [Victim's] pants, and the various damage oxidation marks on his truck, " which, according to Lynch, "his trial attorneys refused to submit and/or argue to the jury." Lynch also submitted a handwritten letter, in which he made arguments regarding the height of the truck's tow hook and other components of the truck as compared to Victim's injuries. He also asserted that, before trial, he had "pointed out" relevant evidence to trial counsel that they improperly "thought was not [germane] to [his] defense, " including pretrial testimony from Detective Anderson regarding certain oxidation and paint transfers (or the lack thereof) onto Victim's clothing that made it "impossible" for Lynch's truck to have been the vehicle that struck Victim. After an evidentiary hearing, the trial court denied Lynch's motion for a new trial.

         ¶11 Represented by new counsel, Lynch then filed a direct appeal. See State v. Lynch, 2011 UT App 1, 246 P.3d 525. Lynch claimed "that the trial court erred in failing to give a jury instruction regarding his alibi defense and that the prosecutor engaged in misconduct by making statements during closing argument implying that [Lynch] had confessed to the crime." Id. ¶ 13. This court affirmed Lynch's convictions. Id. ¶¶ 1, 21.

         ¶12 Lynch then filed a PCRA petition, [3] raising twenty-nine issues, which largely fell into two categories-ineffective assistance of counsel and newly discovered evidence. More specifically, regarding Lynch's ineffective-assistance claims, he raised (1) three claims relating to two potential witnesses-Ashe and another individual named Maxwell; (2) five claims relating to the truck's physical components and damage to the truck; (3) four claims relating to the truck's grille;[4] (4) five claims relating to Victim's injuries; (5) five claims relating to the zip ties; and (6) six claims relating to paint and paint analysis.

         ¶13 In support of his newly discovered evidence claim, Lynch submitted affidavits from two private investigators-Terry Steed and Benjamin Warren-who had examined Lynch's truck in February 2012. In his affidavit, Warren stated that Detective Anderson had told him and Steed that "there were no zip ties found at the actual scene" and that "the zip ties were used by the police officers, themselves, while transporting the Truck from its initial location to the Evidence Center." In his affidavit, Steed corroborated Warren's statements regarding the zip ties. Steed further attested that the truck's front grille was intact and that there "was no physical evidence suggesting that the front grille had sustained any damage, or that it had been broken in any way." He also attested that the truck's hood latch "appeared to work perfectly for the age of the vehicle" and that "there was no evidence of a malfunction." Finally, Steed attested that "no 'tow hook or tow ring' could be located on the Truck's front end."

         ¶14 The State moved for summary judgment on all of Lynch's claims, arguing that many of Lynch's ineffective-assistance claims were procedurally barred because he had previously raised them during the new-trial proceedings. Alternatively, the State argued that all of Lynch's ineffective-assistance claims failed as a matter of law. The State further argued that Lynch's newly discovered evidence claim failed as a matter of law.

         ¶15 The postconviction court rejected some of Lynch's claims as procedurally barred; it determined that "[t]he essence of the grounds underlying" Lynch's "first, second, third, fourth, eleventh, sixteenth, eighteenth, nineteenth, twentieth, twenty-first, twenty-second, and twenty-third claims for relief" had "previously been raised in either Lynch's motion for a new trial or on appeal" and were therefore procedurally barred under the PCRA. The court rejected some of Lynch's claims on the merits; it determined that "[w]ith respect to [Lynch's] third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, twelfth, thirteenth, fourteenth, fifteenth, twenty-first, twenty-fourth, twenty-fifth, twenty-sixth, twenty-seventh, and twenty-eighth claims, the State has shown that Lynch's previous counsel had a conceivable tactical basis or justification for failing to take the action in question." The court further determined that Lynch could not demonstrate prejudice with respect to any of the claims.

         ¶16 The court denied the State's motion for summary judgment on Lynch's newly discovered evidence claim and held an evidentiary hearing. Among others, Warren, Steed, and Detective Anderson testified at the hearing. At the conclusion of the hearing, the postconviction court denied Lynch's petition "in its entirety." The court concluded that Lynch was "miles and miles away" from meeting the PCRA's newly discovered evidence standard.

         ¶17 Lynch appeals.


         ¶18 First, Lynch contends that the postconviction court erroneously granted the State's motion for summary judgment on his claims of ineffective assistance of counsel. Second, Lynch contends that the postconviction court erroneously concluded that his newly discovered evidence "was insufficient to demonstrate that no reasonable trier of fact could have found [him] guilty of the charged offense."


         I. Ineffective Assistance of Counsel

         ¶19 Lynch first contends that "[t]he [postconviction] court erred by granting the State's motion for summary judgment on [his] claims of ineffective assistance of counsel." "We . . . review the postconviction court's grant of summary judgment for correctness." Honie v. State, 2014 UT 19, ¶ 28, 342 P.3d 182. "We affirm a grant of summary judgment when the record shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Ross v. State, 2012 UT 93, ¶ 18, 293 P.3d 345 (citation and internal quotation marks omitted). "In making this assessment, we view the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party." Id. (citation and internal quotation marks omitted).

         ¶20 "The PCRA affords a convicted defendant the opportunity to have his conviction and sentence vacated or modified under certain circumstances." Kell v. State, 2008 UT 62, ¶ 13, 194 P.3d 913 (citation and internal quotation marks omitted). "A petition for post-conviction relief is not a substitute for appellate review, but only a collateral attack on a conviction or sentence." Id. (citation and internal quotation marks omitted). Under the PCRA, a claim is barred if it "was raised or addressed at trial or on appeal." Utah Code Ann. § 78B-9-106(1)(b) (LexisNexis 2012).[5] Likewise, a claim is barred under the PCRA if it "could have been but was not raised at trial or on appeal" unless "the failure to raise that ground was due to ineffective assistance of counsel." Id. § 78B-9-106(1)(c), (3).

         ¶21 We begin our analysis by considering whether any of Lynch's ineffective-assistance claims are procedurally barred.

         A. Barred Ineffective-Assistance Claims

         ¶22 The PCRA precludes relief on any ground that "was raised or addressed at trial or on appeal." Utah Code Ann. § 78B-9-106(1)(b).

         ¶23 Lynch asserts that trial counsel were constitutionally ineffective for (1) failing to examine his truck, (2) failing "to test the State's theory regarding the zip ties, " (3) failing "to investigate the paint found on Victim's clothing or to consult or call an expert for the defense, " and (4) failing to interview or follow up with two potential witnesses. He further asserts that appellate counsel was ineffective for failing to argue trial counsel's ineffectiveness regarding these claims.

         ¶24 The State asserts that Lynch's truck examination claims, paint claims, and claims concerning Maxwell and Ashe "were 'raised or addressed' in the new trial motion" and are consequently barred pursuant to subsection 78B-9-106(1)(b).[6]Lynch responds that his ineffective-assistance claims "should not be barred . . . because [he] did not 'raise' his post-conviction claims in his motion for new trial."[7] According to Lynch, he "hinted at some of his . . . claims during the hearing on his motion for new trial and in handwritten letters to the trial court, but nothing said during that hearing or in those letters suggests that [he] 'raised' the claims for purposes of applying [subsection] 78B-9-106(1)(b)'s bar." We address Lynch's claims in turn to determine whether they are procedurally barred pursuant to subsection 78B-9-106(1)(b) of the PCRA.

         1. Truck claims

         ¶25 First, Lynch contends that trial counsel performed deficiently by failing to examine his truck "even though the State's case was devoted almost exclusively to convincing the jury that the white truck was the murder weapon." Lynch observes that "the State introduced evidence to suggest that a 'tow hook' on the front of the white truck explained the devastating injury to [Victim's] left calf" and to "suggest that a broken zip tie was found in the white truck's engine compartment, and that the zip tie was likely used to secure the truck's purportedly faulty hood." According to Lynch, trial counsel "never examined the truck, never personally saw it, never tested it, and never double-checked the accuracy of the State's examination." The State contends that Lynch "thoroughly covered this in his new trial motion in the criminal case" where "he argued that his trial counsel were ineffective for 'fail[ing] to have important evidence examined and/or challenged.'"

         ¶26 In his motion for a new trial, Lynch argued that trial counsel "failed to have important evidence examined and/or challenged." More specifically, Lynch asserted that "his truck was in such poor operating condition that it could not have even made it to the place where his wife was killed." According to Lynch, he "repeatedly asked his attorneys to have the truck examined by a mechanic to determine its working condition, " and he "informed counsel that brake and engine problems made it virtually impossible to go up or down hills of anything other than the mildest grade." Nevertheless, Lynch argued, "trial counsel failed to have the truck checked and the unopposed evidence at trial was that the truck ran fine." Lynch also noted that he was "still in the process of having the truck checked mechanically" by a "certified GM master mechanic."

         ¶27 Before the hearing on Lynch's motion for a new trial, one of Lynch's trial attorneys-Julie George-submitted an affidavit. In her affidavit, George attested that

17.Mr. Lynch indicated to me and to [the] private investigator that the subject vehicle would not start, run, or brake.
18. I contacted [the prosecutor] to make arrangements for a test-drive of the truck. When those arrangements were made, shortly before trial, I informed Mr. Lynch of this.
19. I met with Mr. Lynch and told him of the arrangements and that the detective would need to be present during the test-drive. I informed him that, should the vehicle be operational, he would be left with those facts for trial. In the presence of the private investigator, Mr. Lynch told me that he did not want the vehicle tested.

         George testified similarly at the hearing on Lynch's motion. In ruling on Lynch's motion for a new trial, the trial court credited George's affidavit and testimony, and concluded:

As to the operational capabilities of the truck, George met with Lynch and informed him "that the detective would need to be present during the test-drive" and "that should the vehicle be operational, he would be left with those facts for trial." Lynch then instructed George "that he did not want the vehicle tested." Moreover, since the trial, Lynch has arranged to have "the truck checked mechanically." In his Motion, he noted that should this inspection yield additional information, he would submit it to the court. Tellingly, no additional information has been forthcoming.

(Citations omitted.)

         ¶28 Thereafter, in his PCRA petition, Lynch generally alleged that trial counsel were ineffective for "fail[ing] to investigate and to examine the alleged murder weapon, " i.e., his white truck. As part of this claim, he specifically alleged that "[t]he grille, had it struck [Victim], would have been damaged, but it was not"; that "[t]he prosecution witnesses . . . testified that there was a tow hook on the vehicle which caused injury to [Victim's] legs, when in fact there was no such tow hook on [Lynch's] vehicle"; that "[t]he grille configuration on [Lynch's] vehicle was inconsistent with the diagrams of the grille presented to the jury by the prosecution"; that "[t]here was no proof as to the presence or lack thereof of any holes or parts of the truck into which zip ties would have been placed in order to keep the hood down"; and ...

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