Lynch v. State

2017 UT App 86

THE UTAH COURT OF APPEALS

SHERMAN A. LYNCH,
Appellant,
v.
STATE OF UTAH,
Appellee.

Opinion
No. 20140402-CA
Filed May 25, 2017

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.

BACKGROUND

¶2 On the afternoon of October 3, 2007, Patricia Rothermich
(Victim) was out walking when a vehicle struck her from behind,
Lynch v. State

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

1. A recitation of the facts surrounding Lynch’s criminal case is
necessary to understand the issues on appeal. We present the
facts “in a light favorable to the prosecution, and consistent with
the judgment of conviction.” Pinder v. State, 2015 UT 56, ¶ 5 n.1,
367 P.3d 968.

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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

2. An officer testified that he had calculated the mileage from the
auction house to Lynch’s house to the place on the freeway
where Lynch said he had given the truck to Chuck to the
abandoned property where the truck was found. According to
the officer, the calculated mileage exceeded the number of miles
actually added to the truck’s odometer since Lynch had
purchased it at auction.

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¶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

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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

3. Lynch filed his initial PCRA petition pro se. Thereafter,
Stephen B. Austin filed a notice of appearance as counsel for
Lynch; Austin then filed an amended PCRA petition.

4. The record on appeal contains references both to the truck’s
“grill” and the truck’s “grille.” To avoid confusion, we use the
term “grille” throughout this decision.

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Lynch v. State

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,

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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.

ISSUES

¶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.”

ANALYSIS

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

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[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).

5. Lynch filed his amended petition in February 2013. The Utah
Legislature amended certain provisions of the PCRA in 2017. For
clarity, we cite to the 2012 version of the Utah Code, which was
the version in effect when Lynch filed his amended petition. See
generally Peterson v. Kennard, 2008 UT 90, ¶ 12 n.6, 201 P.3d 956
(noting that the PCRA had been amended and renumbered in
2008, and citing the version in effect at the time of the petition for
postconviction relief).

20140402-CA 8 2017 UT App 86
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¶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

6. The State concedes that it “has not argued that [the zip-tie]
claims were raised or addressed in the new trial proceedings,
and the State therefore does not contend that those are
prohibited by [subsection 78B-9-106(1)(b)’s] previous-litigation
procedural bar.” Accordingly, we will address those claims on
their merits. Infra ¶¶ 53–61.

7. In his opening brief, Lynch also asserted that subsection 78B-9-
106(1)(b)’s procedural bar “extends only to claims raised ‘at trial’
or ‘on appeal,’ and therefore does not extend to claims raised in
(continued…)

20140402-CA 9 2017 UT App 86
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“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

(…continued)
a motion for new trial.” However, in his reply brief and during
oral argument before this court, Lynch conceded that the Utah
Supreme Court has since rejected this argument. In Pinder v.
State, 2015 UT 56, 367 P.3d 968, our supreme court observed that
although “we sometimes speak of a ‘trial’ as a reference to the
proceedings that begin with opening statements and end with a
verdict,” “[w]e may also speak of the ‘trial’ proceedings as
encompassing everything that happens in the trial court. And that
is the sense of ‘at trial’ in the PCRA.” Id. ¶ 41 (emphasis in
original).

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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

20140402-CA 11 2017 UT App 86
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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
that “[n]either a mechanic [n]or body repair expert were

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consulted.” The postconviction court determined that Lynch’s
failure-to-investigate claim was procedurally barred.

¶29 To the extent that Lynch’s failure-to-investigate claim was
based on the mechanical or operational capabilities of his truck,
we conclude that the postconviction court correctly determined
that the claim was procedurally barred, as it had been raised and
addressed in the new-trial proceedings. See Utah Code Ann.
§ 78B-9-106(1)(b) (LexisNexis 2012). We reach the merits of
Lynch’s remaining claims regarding counsel’s failure to examine
the physical components of Lynch’s truck, i.e., the tow hook,
hood, and grille, and conclude that no prejudice resulted from
appellate counsel’s omission of those claims on direct appeal. 8
See infra ¶¶ 47–52.

2. Paint claims

¶30 Second, Lynch contends that trial counsel were ineffective
for failing “to investigate the paint found on Victim’s clothing or
to consult or call an expert witness for the defense.” Lynch also
argues that trial counsel were ineffective for “fail[ing] to press
the [State’s] expert with respect to the absence of oxidized
material on [Victim’s clothing].” The State responds that the trial
court “specifically rejected these claims in [its] new trial ruling.”

8. As previously mentioned, Lynch raised twenty-eight specific
ineffective-assistance claims in his PCRA petition. Supra ¶ 12. On
appeal from the postconviction court’s ruling, however, Lynch
has consolidated those twenty-eight specific claims into four
generalized claims. Consequently, it is difficult for this court to
determine which of the postconviction court’s rulings on Lynch’s
PCRA petition claims (as originally numbered) he takes issue
with on appeal, which claims were procedurally barred, and
which claims should be addressed on their merits.

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¶31 In his motion for a new trial, Lynch argued that trial
counsel were ineffective because they “barred [him] from
presenting certain evidence and arguments at his trial.” Lynch
asserted that he “had prepared a scale diagram showing the
locations of the injuries, the paint analysis done on [Victim’s]
pants, and the various damage and oxidation marks on his truck
which his trial attorneys refused to submit and/or argue to the
jury.” Lynch further asserted that the diagram “shows that the
injuries and the paint from the pants could not have been caused
by his truck as they simply did not match up with one another.
Such information and analysis could have been vital had it been
shown and/or argued to the jury.”

¶32 Additionally, in his handwritten post-trial letter, Lynch
asserted that before trial, he had “pointed out” relevant evidence
to trial counsel that they improperly “thought was not [germane]
to [his] defense.” Specifically, Lynch observed that Detective
Anderson had testified “at Pre-Trial” that there was “some white
oxidation on the grille” of Lynch’s truck “that was easily
‘transferred onto [Detective Anderson’s] finger,’” but that “[t]he
Paint Analyst could not match this oxidation to anything found
on [Victim’s] clothes, which would have been impossible if she
had been hit by the grille of [Lynch’s truck].” He also noted that
Detective Anderson “had described a black paint that covered
the grille [that] was flaking off” and that “the Paint Analyst did
not find any of this black, flaking paint on [Victim’s] clothes,
which would have been impossible if she had been hit by
[Lynch’s] truck.” Finally, Lynch noted that “samples of white
oxidize[d] (Rustoleum) paint taken from the doors and truck bed
of [the] truck were described as a possible source for the
Rustoleum paint smeared on [Victim’s] clothes” but that based
on Detective Anderson’s testimony, there was “no opportunity
for [Victim] to have had any contact with the sides, doors, or rear
of that vehicle.” Thus, Lynch asserted, it “would be impossible”
for his truck to have hit Victim because “[t]here was no
Rustoleum on the front of the truck found to be transferred to

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[Victim’s] clothes.” Lynch testified similarly at the hearing on his
motion for a new trial.

¶33 At the hearing on the motion for a new trial, George
testified that she did not “feel any need to get a separate expert
with regard to the paint.” George testified that she, Lynch,

and the [private] investigator began discussing the
paint issue [around] September, . . . and discussing
the analysis of the paint, the two different types of
paint, the kind that was on the truck already,
factory paint, and then the over-spray paint and
discussed those issues. We felt, myself and the
investigator, that any information we would
present at trial, it was information that we would
get from the State’s expert anyway. So we felt
through cross-examination we could adequately
put forth any questions that we had.

George further testified that she felt she had adequately “put
forth that information” at trial.

¶34 In ruling on Lynch’s motion for a new trial, the trial court
noted that “Lynch claims to have correlated information
regarding . . . the paint transfers (or non-transfers), that made it
impossible for his truck to have struck [Victim] and that this
information was not presented at trial.” The court stated that “all
of the information to which Lynch refers came out at trial. What
Lynch is really taking issue with is the relative emphasis his trial
attorneys placed on the different bits of information.” The court
then observed that in preparing for trial, trial counsel “engaged
the services of a private investigator who had a background in
accident reconstruction and, together with the investigator,
spent a significant amount of time going through the discovery
concerning the ‘accident’ reconstruction” and that “[b]ased upon
this review, trial counsel concluded that all of the necessary
information could be brought out through the State’s own

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witnesses.” The court further observed that “the information
about the gathering and comparison of the paint samples came
out in the testimony of [the Paint Analyst]” and that during
closing argument, “with respect to the paint transfer, [trial
counsel] reminded the jury that the paint analyst had concluded
that a ‘clear smudge’ found on [Victim’s] clothing did not match
up with anything ‘found on the truck.’” Ultimately, the court
concluded that “the jury heard all of the evidence to which
Lynch refers and trial counsel’s take on that evidence.”

¶35 Consequently, the postconviction court ruled that the
following ineffective-assistance claims from Lynch’s PCRA
petition were procedurally barred: (1) trial counsel’s failure to
“cross-examine Detective Anderson and [the Paint Analyst] on
the lack of any transfer of weathered oxidized plastic from
[Lynch’s] truck’s grille to [Victim’s] clothes, had this particular
grille impacted her in the auto-pedestrian collision”; (2) trial
counsel’s failure to “challenge the lack of expertise of [Detective]
Anderson, and fail[ure] to raise the inconsistency between [the
Paint Analyst’s] testimony concerning white paint smears on
[Victim’s] pants, and Detective Anderson’s testimony on the
same issue”; (3) trial counsel’s failure to “cross-examine
Detective Anderson about the inconsistency between the
location of the white paint smears on [Victim’s] pants versus the
location of any of the laceration or abrasion injuries observed at
her autopsy”; (4) trial counsel’s failure to “properly cross-
examine [the Paint Analyst] concerning her Paint Analysis
Report, and [failure] to retain an expert on the issue of paint
analysis”; and (5) trial counsel’s failure to “cross-examine [the
Paint Analyst] about the flaking and chipped black metallic
paint on the grille from [Lynch’s] truck that would have been
transferred to [Victim’s] clothing on impact.” We agree.

¶36 Lynch raised his claims regarding the paint on Victim’s
clothing, the lack of an expert witness for the defense, and the
absence of oxidized material and black paint on Victim’s

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clothing in his motion for a new trial. Supra ¶¶ 31–32. The trial
court acknowledged Lynch’s argument that “the paint transfers
(or non-transfers) . . . made it impossible for his truck to have
struck [Victim] and that this information was not presented at
trial.” And the trial court concluded that “all of the information
to which Lynch refers came out at trial,” that Lynch was “really
taking issue with . . . the relative emphasis his trial attorneys
placed on the different bits of information,” and that “the jury
heard all of the evidence to which Lynch refers and trial
counsel’s take on that evidence.” (Emphasis in original.) Lynch
has not demonstrated error in this conclusion. Consequently, we
affirm the postconviction court’s ruling that Lynch’s ineffective-
assistance claims regarding the paint and paint analysis were
procedurally barred. See Utah Code Ann. § 78B-9-106(1)(b)
(LexisNexis 2012).

3. Potential witnesses

¶37 Lynch next argues that trial counsel were ineffective for
failing to follow up with two potential witnesses—Maxwell and
Ashe—and that trial counsel’s “failure to contact or follow up
with Maxwell or Ashe fell below professional standards of
assistance.” The State argues that “Lynch specifically raised the
claim about . . . Ashe in his new trial motion” and that although
Lynch “did not identify Maxwell by name” at the new trial
hearing, Lynch “raised the general issue during that
proceeding.” (Internal quotation marks omitted.)

¶38 In his newly discovered evidence claim in his motion for a
new trial, Lynch asserted that a Detective Adamson had
“received a message on an anonymous tip line from a caller
identifying herself as ‘[Ashe]’ and leaving a call back number.”
According to Lynch, Ashe claimed that

she had overheard a conversation in a store
between two men talking. One of the men,
described as a male between 30 and 40 years of age

20140402-CA 17 2017 UT App 86
Lynch v. State

with olive skin and dark brown hair with blonde
highlights, talked about having hit a woman in
Holladay when he became distracted by something
falling on the floor of his vehicle.

“[Ashe]” also overheard the men talking
about how they had seen on the news that the
woman had died. She was so concerned by their
conversation that she then followed the men
outside to the parking lot. She then saw the two
men get into a white pickup truck with substantial
damage to the front end and hood. “[Ashe]” was
only able to get a partial Ski Utah license plate
number of 758 XXX. Detective Adamson noted that
no follow up to this tip would be done. Neither of
the men matches a description of Mr. Lynch.
Further, this partial plate number does not match
the plate number of Mr. Lynch’s truck.

¶39 At the hearing on Lynch’s motion, George explained that
she was aware of Ashe and that

[t]he concern we had [was] that information is
hearsay, that someone had injured someone,
meaning some other suspect would have hit an
individual and fled the scene. My first concern was
hearsay.

The second concern was if someone had
really hit someone and fled the scene, and we were
able to locate them, they would take the Fifth
[A]mendment and would not have been allowed to
testify anyway.

George further testified that the information regarding Ashe was
“brought out during trial” and that

20140402-CA 18 2017 UT App 86
Lynch v. State

[i]t was similar to a number of situations where I
felt based on trial strategy that it was better to
address that issue through cross-examination of
Detective Adamson and show the jury that there
were other people that could have been looked at,
other possibilities for explaining the motor vehicle
accident, and then summarize that in closing
argument.

¶40 In ruling on Lynch’s motion for a new trial, the trial court
observed that at the hearing, “Lynch’s counsel conceded that
[Lynch’s newly discovered evidence] argument was subsumed
by the ‘ineffective assistance of counsel’ argument.” The court
further observed that Lynch’s complaint was that “trial counsel
did not follow up with . . . Ashe.” The court then determined
that

trial counsel specifically elicited from Detective
[Adamson], the individual in charge of the
investigation, the information Ashe had overheard
and passed on to the police. Then, in closing, trial
counsel argued that the police disregarded this and
other important pieces of information because they
had already closed their minds to the possibility
that someone other than Lynch killed [Victim].

Consequently, the court concluded that trial counsel “did not fail
to follow obvious investigative leads or to have important
evidence examined or challenged.”

¶41 In his PCRA petition, Lynch claimed that “[trial] counsel
did not retain an investigator to further investigate this matter,
nor did [trial] counsel subpoena . . . Ashe to trial” and that
“[t]here was no strategic reason for such failures on the part of
[trial] counsel.” The postconviction court determined that this
claim was procedurally barred pursuant to subsection 78B-9-
106(1)(b). We agree. Lynch specifically raised his ineffective-

20140402-CA 19 2017 UT App 86
Lynch v. State

assistance claim regarding Ashe in his motion for a new trial,
and the trial court ruled on and rejected that claim.
Consequently, we conclude that the postconviction court
correctly ruled that Lynch’s ineffective-assistance claim
regarding Ashe was procedurally barred. See Utah Code Ann.
§ 78B-9-106(1)(b) (LexisNexis 2012).

¶42 Lynch’s other potential witness, an individual named
Maxwell, submitted a sworn witness statement asserting that he
was in the area on the afternoon Victim was killed and that he
“heard a loud noise—like a[] . . . truck that had hit a speed bump
or a pothole. I looked toward the road [and] saw what I think
was a large red truck driving by.” The State acknowledges that
although Lynch stated at the hearing on his motion for a new
trial that he “had located five, possibly six people who had
called into the police with other leads of people who could have
been there,” Lynch did not mention Maxwell by name. In his
PCRA petition, Lynch asserted that trial counsel were ineffective
for failing to subpoena Maxwell as a witness for the defense and
for failing to “cross-examine Detective Adamson concerning his
testimony that there was ‘no reason to go looking for a red
truck.’” The postconviction court determined that these claims
were procedurally barred and that they failed on the merits. 9
Because the postconviction court reached the merits of Lynch’s
claims regarding Maxwell, we follow suit and examine the
merits of the issue. Infra ¶¶ 62–68.

9. The postconviction court addressed Lynch’s claims concerning
Maxwell under both subsections 78B-9-106(1)(b) and (1)(c) of the
PCRA. See Utah Code Ann. § 78B-9-106(1)(b), (c) (LexisNexis
2012). The court acknowledged that while “the essence” of
Lynch’s Maxwell claims “was largely raised in previous
proceedings,” the claims “may not have been expressly raised
previously.”

20140402-CA 20 2017 UT App 86
Lynch v. State

B. Remaining Ineffective-Assistance Claims

¶43 Turning to Lynch’s remaining ineffective-assistance
claims, in his briefing, Lynch’s claims are generally set forth as
ineffective-assistance-of-trial-counsel claims. But at the end of
his briefing, Lynch also contends that “[g]iven the disputes of
material fact as to whether trial counsel performed deficiently,
there is a genuine dispute of material fact as to whether
appellate counsel’s performance fell short of the Sixth
Amendment’s requirements.” We thus understand Lynch also to
be arguing that his appellate counsel performed ineffectively in
failing to assert the ineffectiveness of his trial counsel.

¶44 First, we conclude that Lynch’s claims of ineffective
assistance of trial counsel could have been but were not raised
on direct appeal and are therefore barred. See Utah Code Ann.
§ 78B-9-106(1)(c) (LexisNexis 2012). Lynch was represented by
new counsel on direct appeal who could have raised these
claims that trial counsel were constitutionally ineffective. See
Hamblin v. State, 2015 UT App 144, ¶ 10, 352 P.3d 144. Lynch has
not demonstrated, or argued, that these claims could not have
been brought on appeal or that they “were unavailable to
appellate counsel at the time of his appeal.” See id. Consequently,
the PCRA bars Lynch’s postconviction claims directly
challenging his trial counsel’s performance.

¶45 Nevertheless, Lynch may obtain relief under the PCRA if
he “demonstrates that appellate counsel’s failure to argue trial
counsel’s ineffectiveness was itself ineffective assistance of
counsel.” See id. ¶ 11; Utah Code Ann. § 78B-9-106(1)(c), (3).
Because Lynch’s “‘claim that his appellate counsel was
ineffective is intertwined with and dependent upon his claim[s]
that his trial counsel [were] ineffective,’ we must ‘examine the
merits of the claim[s] of ineffective assistance of trial counsel’ to
determine if appellate counsel rendered ineffective assistance.”
See Hamblin, 2015 UT App 144, ¶ 11 (quoting Ross v. State, 2012
UT 93, ¶ 25, 293 P.3d 345); see also Ross, 2012 UT 93, ¶ 52 (“In

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Lynch v. State

other words, the appellate counsel claim is the gateway to the
otherwise procedurally barred trial counsel claim.”). We may
examine the merits of those claims “only to the extent required
to address the ineffective assistance of appellate counsel claim.”
Ross, 2012 UT 93, ¶ 25 (citation and internal quotation marks
omitted).

¶46 “The standard for evaluating whether appellate counsel is
ineffective is the same Strickland standard used to determine
whether trial counsel is ineffective.” Kell v. State, 2008 UT 62,
¶ 42, 194 P.3d 913. To succeed on a claim of ineffective assistance
of counsel, a defendant must prove that counsel’s
“representation fell below an objective standard of
reasonableness” and that “the deficient performance prejudiced
the defense.” Strickland v. Washington, 466 U.S. 668, 687–88
(1984). “To show that appellate counsel was ineffective in failing
to raise a claim, the petitioner must show that the issue [was]
obvious from the trial record and . . . probably would have
resulted in reversal on appeal.” 10 Kell, 2008 UT 62, ¶ 42
(alteration and omission in original) (citation and internal
quotation marks omitted). “[W]hen making a claim under the
PCRA, the petitioner bears the burden of establishing ineffective
assistance of appellate counsel.” Ross, 2012 UT 93, ¶ 24.

1. Lynch’s truck

¶47 Lynch first argues that appellate counsel should have
raised a claim that trial counsel were ineffective for failing to
examine his truck. Lynch asserts 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

10. Notably, in his briefing, Lynch does not mention the
standard for evaluating whether appellate counsel was
ineffective.

20140402-CA 22 2017 UT App 86
Lynch v. State

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.” Turning to prejudice, Lynch asserts
that if trial counsel had examined the truck, they would have
learned that the truck did not have a tow hook on it, that the
truck’s hood was not faulty, and that the grille was undamaged
and its “spacing . . . did not line up with the alleged grille marks
found on the victim’s body.” Lynch contends that on direct
appeal, “appellate counsel never pointed to counsel’s
investigative deficiencies.” 11

¶48 We first note that Lynch supports his truck examination
claims with citations to Steed’s affidavit. With regard to the tow
hook, Steed stated in his affidavit: “On our hands and
knees, . . . Warren and I physically checked on and under the
Truck’s front bumper, but no ‘tow hook or tow ring’ could be
located on the Truck’s front end.” As to the truck’s hood, Steed
stated: “With respect to the hood latch of the Truck, Agent
Warren and I examined the hood latch, and found it appeared to
work perfectly for the age of the vehicle. . . . [T]here was no
evidence of malfunction.” And with regard to the truck’s grille,
Steed’s affidavit stated that “[t]he front grille was intact. There
was no physical evidence suggesting that the front grille had
sustained any damage, or that it had been broken in any way.”
However, Steed and Warren did not examine Lynch’s truck until
2012, approximately two years after Lynch’s 2010 direct appeal
and five years after the crime occurred. Lynch does not claim
that, during the intervening years, the truck was kept unrepaired

11. Lynch does not assert that appellate counsel should have
examined the truck, but only that appellate counsel was
ineffective for failing to claim on direct appeal that trial counsel
were ineffective for failing to examine the truck.

20140402-CA 23 2017 UT App 86
Lynch v. State

and in the same condition as it was initially found in 2007. Nor
does he provide affidavits or other information supporting such
a conclusion. Indeed, the State correctly observes that by the
time Steed and Warren examined the truck in 2012, the truck had
been partially disassembled, as evidenced by photographs
contained in Lynch’s own PCRA petition. Additionally, in his
affidavit, Steed acknowledged that when he went to examine the
truck, the truck’s front grille had been removed from the truck
and was “wrapped separately in brown paper.” Consequently,
Steed’s and Warren’s affidavits are not sufficient to establish the
necessary prejudice for Lynch’s ineffective-assistance claims
relating to his truck’s physical characteristics.

¶49 Moreover, based on the trial record that was available to
appellate counsel, we conclude that it would not have been
obvious to appellate counsel that a personal examination of the
truck by trial counsel would likely have revealed exculpatory
information. See Kell, 2008 UT 62, ¶ 42. We first address Lynch’s
argument regarding the tow hook. Lynch asserts that an
examination of the truck by trial counsel would have revealed
that “the truck does not have a tow hook on it.” Even assuming,
for the sake of argument, that there was never a tow hook on
Lynch’s truck, the State never alleged that the tow hook was the
only possible source for Victim’s leg injury. Indeed, while
Detective Anderson testified at trial that “[i]t was believed that
[the tow hook] potentially could have been involved with
causing the injury to the [Victim’s] calf or one of the calves,” he
also testified that there was a “splash guard” that was “very
close . . . to some of the injuries that were identified on the
[Victim’s] calf.” And, more importantly, in his handwritten letter
supporting his motion for a new trial, filed before appellate
counsel entered the picture, Lynch repeatedly referred to the tow
hook and made arguments about its measurements, including
“the distance the tow hook is from the truck[’]s midline” and
“the distance the tow hook is from the truck[’]s bumper.”
Consequently, because Lynch essentially conceded the existence

20140402-CA 24 2017 UT App 86
Lynch v. State

of a tow hook on his truck, making an argument regarding the
absence of the tow hook would not have been obvious to
appellate counsel, see Kell, 2008 UT 62, ¶ 42, or even ethical.

¶50 Lynch also asserts that an examination of the truck by
trial counsel would have revealed that “the truck’s hood was not
actually ‘faulty.’” Even if appellate counsel had raised this
ineffectiveness issue on appeal, we are not persuaded that doing
so “probably would have resulted in reversal on appeal.” See
Kell, 2008 UT 62, ¶ 42 (citation and internal quotation marks
omitted). The trial record contained multiple sworn statements
indicating that the truck’s hood did not latch properly. For
example, at trial, Detective Anderson testified that the hood of
the truck “did not appear to latch properly”: “It didn’t appear
to—as you pushed it down to latch it in place, you’d expect it to
stay. It doesn’t appear to stay in place. It doesn’t fully latch.” The
owner of the garage where Lynch kept his truck submitted an
affidavit attesting that he once saw Lynch driving the truck and
that the truck’s hood blew open while the truck was in motion.
Additionally, the truck’s previous owner signed an affidavit
attesting that “while he owned the pickup” “the hood latch was
not working properly.” Given the abundance of record evidence
demonstrating that the truck’s hood latch was indeed faulty, we
conclude that Lynch has not shown that appellate counsel
overlooked an obvious argument that probably would have
resulted in reversal on appeal. See Kell, 2008 UT 62, ¶ 42.

¶51 Lastly, Lynch asserts that trial “counsel’s investigation
would have [revealed] exculpatory evidence in the form of an
undamaged grille with different dimensions than the marks on
[Victim’s] body.” Again, we conclude that this issue would not
have been obvious from the trial record. Specifically, during
closing argument, trial counsel highlighted that there was no
evidence that the truck’s grille was damaged:

Do you remember how they ruled out Sherman
Lynch’s van? Because it didn’t have any of the

20140402-CA 25 2017 UT App 86
Lynch v. State

damage consistent with this type of accident. Well,
what kind of damage is that detective? Oh, you
know, damage to the front end, to the grille, to the
headlights, broken headlights, some damage to the
hood. Okay, so let’s look at the truck. Did you hear
any testimony about [a] broken headlight?
Nothing. Did you hear any testimony about
damage to a grille? Nothing.

Moreover, during the hearing on Lynch’s motion for a new trial,
Lynch conceded that trial counsel had argued “about the no
front-end damage” on his truck. Given that the trial record,
including Lynch’s own testimony, indicates that trial counsel
had specifically alerted the jury to the fact that there was no
evidence of damage to the truck’s grille, an ineffective-assistance
claim on this point would not have been obvious to appellate
counsel, nor would raising it likely have resulted in reversal on
appeal. See Kell, 2008 UT 62, ¶ 42. And with regard to Lynch’s
claim about the dimensions of the grille as compared to the
marks on Victim’s body, Lynch cites, without further
explanation, to Steed’s affidavit, an accompanying picture of the
truck’s grille, and to notes made by Detective Anderson during
Victim’s autopsy. There is, however, no apparent conflict
between Detective Anderson’s notes and the 2012 picture of the
truck’s grille, and Detective Anderson indicated in his notes that
the relevant marks on Victim were only “possible marks from
vehicular grille.” (Emphasis added.) Consequently, an
ineffective-assistance claim regarding the grille dimensions
would not have been obvious to appellate counsel. See id.

¶52 We conclude, with regard to the truck examination
claims, that Lynch has not demonstrated that appellate counsel
missed an obvious issue from the trial record that probably
would have resulted in reversal on appeal. See id. As a result,
Lynch has not demonstrated that appellate counsel was
ineffective for omitting these claims on direct appeal. See id.

20140402-CA 26 2017 UT App 86
Lynch v. State

Consequently, we conclude that the postconviction court
correctly granted the State’s motion for summary judgment on
these claims. See Honie v. State, 2014 UT 19, ¶ 28, 342 P.3d 182.

2. The zip ties

¶53 Next, Lynch argues that appellate counsel rendered
ineffective assistance by failing to claim that trial counsel were
ineffective for failing to “test the State’s theory regarding the zip
ties.” Lynch argues that “[d]espite the central importance of the
zip ties to the State’s case, [trial] counsel never independently
examined the zip ties, and declined to seriously probe the
problems associated with them.” More specifically, Lynch
asserts that trial counsel failed to “have the zip ties tested for the
presence of paint” or to “evaluate how the zip ties were placed
on the truck or found at the crime scene.” Again, Lynch asserts
that on direct appeal, “appellate counsel never pointed to
counsel’s investigative deficiencies.”

a. Paint on the zip ties

¶54 First, Lynch argues that appellate counsel should have
raised a claim that trial counsel were ineffective for failing to
“have the zip ties tested for the presence of paint.”

¶55 Even if we assume appellate counsel performed
deficiently in failing to raise this claim, Lynch has not shown
that he was prejudiced by appellate counsel’s performance,
because he has not shown that raising this claim “probably
would have resulted in reversal on appeal.” See Kell v. State, 2008
UT 62, ¶ 42, 194 P.3d 913 (citation and internal quotation marks
omitted). Indeed, Lynch has not even asserted that reversal on
appeal was likely if appellate counsel had raised this claim, let
alone explained why. And as the State correctly points out,
Lynch has “proffered nothing that showed that if the zip tie had
been tested, the test would have shown that the white substance
was not paint that matched the paint on his truck.” (Emphasis in

20140402-CA 27 2017 UT App 86
Lynch v. State

original.) Consequently, Lynch has failed to carry his burden of
establishing that appellate counsel was ineffective for failing to
raise this claim. See Ross v. State, 2012 UT 93, ¶ 24, 293 P.3d 345
(explaining that a petitioner bears the burden of establishing
ineffective assistance of appellate counsel).

b. How the zip ties were used on the truck

¶56 Second, Lynch argues that appellate counsel should have
raised a claim that trial counsel were ineffective for failing to
“independently evaluate how the zip ties were placed on the
truck.” As for prejudice, Lynch tethers this claim into trial
counsel’s failure to examine the truck. According to Lynch, had
trial counsel examined the truck, “counsel would have learned
that the truck’s hood was not actually ‘faulty.’”

¶57 Lynch has not demonstrated that appellate counsel
omitted a claim that “probably would have resulted in reversal
on appeal.” See Kell, 2008 UT 62, ¶ 42 (citation and internal
quotation marks omitted). As previously discussed, the record
contains several sworn statements demonstrating that the truck’s
hood did not latch properly. Supra ¶ 50. And Lynch’s support for
his claim that the truck hood did latch properly is based solely
on statements from Steed’s affidavit detailing his 2012
examination of the truck. Again, Steed and Warren examined
Lynch’s truck several years after Lynch’s direct appeal, and
Lynch has not demonstrated that his truck was in the same
physical condition in 2012 as it was when it was initially found
in 2007. Supra ¶ 48. Aside from Steed’s affidavit, Lynch has not
proffered anything demonstrating that raising this issue
“probably would have resulted in reversal on appeal.” See Kell,
2008 UT 62, ¶ 42 (citation and internal quotation marks omitted).
Because Lynch fails to show a reasonable probability of reversal
on appeal, this claim of ineffective assistance of appellate
counsel fails. See id.

20140402-CA 28 2017 UT App 86
Lynch v. State

c. How the zip ties were found at the crime scene

¶58 Third, Lynch argues that appellate counsel should have
raised a claim that trial counsel were ineffective for failing to
“independently evaluate how the zip ties were . . . found at the
crime scene.”

¶59 Lynch appears to be arguing that counsel were ineffective
for not asserting that the zip ties were actually discovered
somewhere other than the crime scene. However, during trial,
multiple witnesses described seeing the zip ties in the roadway
at the crime scene, and the jury was presented with photographs
from the crime scene showing several zip ties lying in the
roadway. Consequently, we conclude that this claim would not
have been “obvious from the trial record.” See Kell, 2008 UT 62,
¶ 42 (citation and internal quotation marks omitted).

¶60 And in any event, even if we were to assume appellate
counsel performed deficiently in failing to raise this claim, Lynch
has not shown prejudice, because he has not shown that raising
the claim “probably would have resulted in reversal on appeal.”
See id. (citation and internal quotation marks omitted). Again,
Lynch has not asserted that reversal on appeal was likely if
appellate counsel had raised this claim, let alone explained why.
Accordingly, Lynch has failed to carry his burden of establishing
that appellate counsel was ineffective for failing to raise this
claim. See Ross v. State, 2012 UT 93, ¶ 24, 293 P.3d 345.

¶61 We conclude that the postconviction court correctly
granted the State’s motion for summary judgment on Lynch’s
zip-tie claims.

3. The potential witnesses

¶62 Next, Lynch argues that appellate counsel rendered
ineffective assistance by failing to claim that trial counsel were
ineffective for failing to follow up with two potential

20140402-CA 29 2017 UT App 86
Lynch v. State

witnesses—Maxwell and Ashe—and that trial counsel’s “failure
to contact or follow up with Maxwell or Ashe fell below
professional standards of assistance.” Again, Lynch contends
that on direct appeal “appellate counsel never pointed to [trial]
counsel’s investigative deficiencies.” As previously discussed,
Lynch’s claim regarding Ashe was raised and addressed during
the new-trial proceedings. See supra ¶¶ 38–41. Therefore, we will
only consider Lynch’s claim regarding Maxwell.

¶63 With respect to Maxwell, Lynch argues that appellate
counsel should have raised a claim that trial counsel were
ineffective for failing to follow up with Maxwell, who submitted
a sworn witness statement asserting that on the afternoon Victim
was killed, he “heard a loud noise—like a[] . . . truck that had hit
a speed bump or a pothole. I looked toward the road [and] saw
what I think was a large red truck driving by.” According to
Lynch, trial counsel performed deficiently because although trial
counsel “cross-examined Deputy Anderson regarding the red
truck, . . . without Maxwell’s own testimony regarding what he
saw, [trial] counsel could do nothing beyond vaguely suggesting
the testimony’s existence.”

¶64 “To determine whether appellate counsel’s decision not to
raise this claim prejudiced [Lynch], we must evaluate trial
counsel’s actions to determine if the claim ‘probably would have
resulted in reversal on appeal.’” See Hamblin v. State, 2015 UT
App 144, ¶ 15, 352 P.3d 144 (quoting Kell v. State, 2008 UT 62,
¶ 42, 194 P.3d 913). To demonstrate that trial counsel performed
deficiently, Lynch “must overcome the presumption that, under
the circumstances, the challenged action might be considered
sound trial strategy.” Strickland v. Washington, 466 U.S. 668, 689
(1984) (citation and internal quotation marks omitted). We
therefore must determine if “a rational basis for counsel’s
performance can be articulated, and if so, we will assume counsel
acted competently.” Hamblin, 2015 UT App 144, ¶ 16 (citation
and internal quotation marks omitted). To “eliminate the

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Lynch v. State

distorting effects of hindsight,” we “evaluate the conduct from
counsel’s perspective at the time.” Strickland, 466 U.S. at 689.

¶65 The record indicates that trial counsel cross-examined
both Detectives Anderson and Adamson about Maxwell and the
red truck. And during opening statement and closing argument,
trial counsel highlighted the State’s failure to investigate other
potential leads, including the red truck observed by Maxwell.
For example, during opening statement, trial counsel stated:

At this same time there are witnesses that hear a
loud bump. However, there are also witnesses who
witnessed trucks—a red truck, a diesel truck, a
white truck with lettering on it and a phone
number—all kinds of different things.

What you’re not going to hear is what the
officers did to follow up on those. You’re going to
hear evidence about people who did come forward
and said, we saw a white truck, two males in it,
they looked like two Hispanic males. There are a
lot of landscaping trucks in this area. They go back
and forth, look for one where these men match this
description. Again, no follow-up.

¶66 Although trial counsel likely could have further
investigated Maxwell or called him to testify at trial, trial counsel
may well have made a reasonable tactical choice not to do so.
“The Sixth Amendment [to the United States Constitution] does
not require counsel to . . . fully investigate every potential lead.”
Menzies v. State, 2014 UT 40, ¶ 183, 344 P.3d 581 (emphasis in
original). “[C]ounsel has a duty to make reasonable
investigations or to make a reasonable decision that makes
particular investigations unnecessary.” Strickland, 466 U.S. at
691; see also Menzies, 2014 UT 40, ¶ 183. “[S]trategic choices made
after less than complete investigation are reasonable precisely to
the extent that reasonable professional judgments support the

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Lynch v. State

limitations on investigation.” Strickland, 466 U.S. at 690–91; see
also State v. Montoya, 2004 UT 5, ¶ 24, 84 P.3d 1183 (“Although
failure to investigate may, in some cases, satisfy the [deficient-
performance element] of the Strickland test, it is within counsel’s
discretion to make reasonable decisions regarding the extent to
which particular investigations are necessary.”). “An attorney
can avoid activities that appear distractive from more important
duties” and is “entitled to . . . balance limited resources in accord
with effective trial tactics and strategies.” Harrington v. Richter,
562 U.S. 86, 107 (2011) (citation and internal quotation marks
omitted). In this case, trial counsel, with their limited time and
resources, could reasonably have seen little value in tracking
down a witness who did not actually observe the incident, but
who only saw a red truck in the vicinity. Instead, trial counsel
could have reasonably chosen to highlight the fact that
investigators had not pursued certain leads, including Maxwell’s
lead about the red truck, and to use that information to suggest
that the State’s investigation was incomplete. We conclude that
this strategy was not objectively unreasonable and that trial
counsel did not perform deficiently by refraining from further
investigating Maxwell or calling him to testify at trial.

¶67 We also note that beyond Lynch’s bare assertion that
“counsel’s further investigation into different explanations of the
events might well have borne fruit,” Lynch has not provided a
description as to what Maxwell would have testified to at trial or
explained how that testimony “probably would have resulted in
reversal on appeal.” See Kell, 2008 UT 62, ¶ 42 (citation and
internal quotation marks omitted). Indeed, we agree with the
State that “Lynch’s claim about [Maxwell] is ultimately
speculative.” See State v. Munguia, 2011 UT 5, ¶ 30, 253 P.3d 1082
(“[P]roof of ineffective assistance of counsel cannot be a
speculative matter but must be a demonstrable reality.” (citation
and internal quotation marks omitted)). At its core, Lynch’s
argument is essentially that, notwithstanding all of the evidence
linking him and his truck to the collision with Victim, a jury

20140402-CA 32 2017 UT App 86
Lynch v. State

would have acquitted Lynch if it had simply heard that someone
in the area heard “a loud noise like [a] . . . truck . . . had hit a
speed bump or a pothole” and saw “a large red truck driving
by” around the time of the collision. We are not persuaded, nor
is it probable that the jury would have been.

¶68 Because a claim that trial counsel were ineffective in this
regard would not have likely resulted in reversal on appeal,
Lynch was not prejudiced by appellate counsel’s failure to raise
it. See Kell, 2008 UT 62, ¶ 42. Consequently, the postconviction
court correctly granted the State’s motion for summary
judgment on this claim. See Honie v. State, 2014 UT 19, ¶ 28, 342
P.3d 182.

¶69 In sum, we conclude that the postconviction court
correctly granted the State’s motion for summary judgment on
all of Lynch’s ineffective-assistance claims. See id.

II. Newly Discovered Evidence

¶70 Lynch contends that the postconviction court “erred
when it held that newly discovered evidence was insufficient to
demonstrate that no reasonable trier of fact could have found
[him] guilty of the charged offense.” “We review an appeal from
an order dismissing or denying a petition for post-conviction
relief for correctness without deference to the lower court’s
conclusions of law.” Taylor v. State, 2007 UT 12, ¶ 13, 156 P.3d
739 (citation and internal quotation marks omitted).

¶71 Under the PCRA, a petitioner is entitled to relief based on
“newly discovered material evidence” if (1) neither the
petitioner nor his counsel knew of, or could have discovered
through the exercise of reasonable diligence, the evidence before
or at the time of trial; (2) the material evidence is not merely
cumulative of evidence already known; (3) “the material
evidence is not merely impeachment evidence”; and (4) “viewed
with all the other evidence, the newly discovered material

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Lynch v. State

evidence demonstrates that no reasonable trier of fact could have
found the petitioner guilty of the offense or subject to the
sentence received.” 12 Utah Code Ann. § 78B-9-104(1)(e)
(LexisNexis 2012).

¶72 In support of his newly discovered evidence claim, Lynch
submitted affidavits from two independent investigators—Terry
Steed and Benjamin Warren—relating the findings of their 2012
investigation. According to Lynch, this newly discovered
evidence “call[s] into serious question two of the State’s
strongest pieces of evidence”—the zip ties and the tow hook—
and “creates reasonable doubt as to Lynch’s guilt.”

¶73 In his affidavit, Warren attested that he and Steed had
met with Detective Anderson in February 2012 and that
Detective Anderson had told them that “there were no zip ties
found at the actual scene” and that “the zip ties were used by the

12. Citing Julian v. State, 2002 UT 61, 52 P.3d 1168, Lynch asserts
that newly discovered evidence must be “such as to render a
different result probable on retrial.” See id. ¶ 14. But Julian
described the “law in effect prior to the enactment of the PCRA.”
See id. ¶ 13. Under the pre-PCRA standard, a petitioner was
entitled to relief only if there was a “substantial likelihood of a
different result on retrial.” See id. ¶ 21; see also id. ¶ 17 (“[O]ur
pre-PCRA case law requires that newly discovered evidence
demonstrate more than merely rendering a different result
probable at retrial, but less than [ensuring] that no reasonable
trier of fact could have found the petitioner guilty of the
offense.”). Under the current PCRA standard, however, a
petitioner can obtain relief only if “the newly discovered
material evidence demonstrates that no reasonable trier of fact
could have found the petitioner guilty of the offense.” Utah Code Ann.
§ 78B-9-104(1)(e)(iv) (LexisNexis 2012) (emphasis added).
Consequently, Lynch’s reliance on Julian is misplaced.

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police officers, themselves, while transporting the Truck from its
initial location to the Evidence Center.” According to Warren, an
Officer Ipson had “fortified Detective Anderson’s comments,
and agreed that the zip ties were used by the police officers and
not recovered from the scene of the accident.”

¶74 Steed’s affidavit corroborated Warren’s statements
regarding Detective Anderson’s and Officer Ipson’s comments
about 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.” With respect to the truck’s
hood latch, Steed attested that it “appeared to work perfectly for
the age of the vehicle” and that “there was no evidence of a
malfunction.” Steed also attested that “no ‘tow hook or tow ring’
could be located on the Truck’s front end.” Steed stated that it
was his professional opinion that “the physical characteristics of
the Truck that [he and Warren] investigated . . . do not correlate
with the auto-pedestrian fatality to which the Truck is allegedly
linked.”

¶75 The postconviction court held an evidentiary hearing on
Lynch’s newly discovered evidence claim. At the hearing, Steed
initially repeated the claims from his affidavit. He testified that
Detective Anderson had told him that there were no “zip-ties
found at the scene” and that officers “brought the zip-ties with
[them]” and “attached them to the vehicle in order to transport
the vehicle to the evidence facility.” Like Warren, Steed testified
that “Officer Ipson . . . fortified Detective Anderson’s comments
and agreed that the zip-ties were used by the police officers and
not recovered from the scene of the accident.” Steed further
testified that he “could not find anything that would have been
conducive to needing zip-ties to hold anything in place or to
otherwise be used” on Lynch’s truck and that he “found the
hood latch [on Lynch’s truck] to be in good, working condition.”

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Lynch v. State

¶76 On cross-examination, however, Steed clarified that “it
was not easy to make the hood close” and that “this was a
typical hood latch for an older truck,” “[m]eaning that it didn’t
work as well as it should.” Steed admitted that he never drove
the truck and had no “first-hand knowledge of how the hood
performs when it’s driven at high speeds.” Steed further testified
that although he “could not seem to locate an area on the front of
the [truck] that would be consistent with needing a zip-tie
attached for whatever reason,” there was “absolutely” a “place
on the front of the [truck] to which a zip-tie could have been
attached.” Steed suggested that “the grille, itself, could have had
30 or 40 of them on there.” On redirect examination, Steed
testified that he could not say “in all honesty and without any
reservation, that it was absolutely [Detective Anderson]” who
said there “were no zip-ties at the actual scene.”

¶77 Warren also testified at the hearing. He testified that he
had examined the truck with Steed “to determine where some tie
clips could have been attached on the truck and if there was a
tow hook on the truck.” According to Warren, he “didn’t see
anything where zip-ties could have been attached.” Warren
further testified that Detective Anderson had mentioned that the
zip ties “weren’t found on the scene” and that officers had “used
those to attach parts of the truck from the scene.” According to
Warren, Detective Anderson told him “that they had actually
used those zip-ties on the truck at the scene of the accident.” 13
On cross-examination, Warren testified that he had never driven
the truck and had no “first-hand knowledge of how the hood
would perform if the truck was driven at 30 miles an hour.” He
also acknowledged that “it’s possible the zip-ties could have
been attached to the grille” of the truck but that he “wouldn’t see
any purposeful reason to use a zip-tie.” Warren further

13. This statement is inconsistent with the record; the truck was
not found at the scene of the collision.

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Lynch v. State

acknowledged that he did not have “any real basis of knowledge
about how this truck works or what it does and doesn’t need.”

¶78 Detective Anderson testified at the hearing that the zip
ties “were in the collision path” and “had the shape of whatever
they were around” so it was his opinion “at the time, that they,
probably, came off the vehicle, itself, or something attached to
the vehicle at the time” and that they “would be related to the
crash.” He testified that “there [were] a couple of opinions
throughout the course of the investigation of possibilit[ies] for
the zip-tie location,” including

that the zip-ties could have . . . been ran through
the front portion of the underside of [a] hard-
ducking component of the underside of the hood,
such as the front clip. It also was believed that it
possibly could have been attaching the grille, itself,
to something inside of the vehicle, more secure,
simply just because of how loose things were on
the front of the vehicle.

Detective Anderson further testified that he was sure that the zip
ties “were found at the scene of the crash,” that there were about
“10 to 15 people” at the scene when he arrived, and that he was
never alone at the scene. Regarding his alleged conversation
with Steed and Warren in 2012, Detective Anderson stated that
he had talked to Steed but that he had “never had any
conversations with Mr. Warren” who was “pretty much, doing
all the work.” Detective Anderson testified that Steed never
asked him about the discovery of zip ties at the scene and that he
never said there were no zip ties at the scene. He further testified
that no one involved in the 2012 investigation drove the truck.
Lastly, he authenticated several photographs taken at the scene
that showed zip ties lying in the roadway.

¶79 Officer Ipson testified as well. He testified that he never
“visited [the] crime scene,” that he was not “involved in the

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direct collection of evidence,” and that his involvement in the
case only began “[o]nce the vehicle came into [the] warehouse.”
He further testified that he was present when Steed and Warren
examined the truck in 2012, but that he never spoke with either
Steed or Warren and that he never told “them how the evidence
was collected at the crime scene” because he did not “know how
they collected it at the crime scene.” He also testified that neither
Steed nor Warren drove the truck.

¶80 Finally, Detective Stewart, who was Detective Anderson’s
partner during the investigation, testified. According to
Detective Stewart, neither he nor Detective Anderson was ever
alone at the crime scene. Detective Stewart further testified that
he had observed three black zip ties in the roadway at the crime
scene and that he did not “know of any other officers bringing
them with them” to the crime scene.

¶81 At the conclusion of the evidentiary hearing, the
postconviction court ruled from the bench. The court determined
that Lynch was “miles and miles” away from establishing that
no reasonable trier of fact could have found him guilty given the
newly discovered evidence. The court observed that the newly
discovered evidence was “sworn testimony that . . . [the] lead
investigator . . . perjured himself at trial and, in fact, that the
evidence was [that] the zip-ties were not found at the scene.”
According to the court, taking Steed’s and Warren’s statements
about the zip ties as true “would mean that all of the objective
evidence, the photographs that were taken, were false.” The
court noted that it “found everybody quite credible” and that it
did not “doubt that . . . Steed and the others, whatever they
thought they heard, they heard. I don’t think anybody is shading
the truth.” The court further noted that it “thought Mr. Steed, in
particular, was quite credible,” but that “[u]nfortunately, people
mishear things.”

¶82 The court then found that it was “beyond dispute that the
zip-ties, that evidence, was observed in situ, by Detective

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Lynch v. State

Anderson and others and photographed that day and, then,
taken into evidence, into a secure facility.” According to the
court, the idea that Detective Anderson “openly admitted” to
“representatives of Mr. Lynch” to “committing a major felony”
“defie[d] common sense.” The court observed that it was
“[i]mpossible to believe that [Detective Anderson] told [Steed
and Warren] the truck was removed from the scene” by police,
because “[e]verybody knows that wasn’t the case.” The court
further observed that it did not matter whether the zip ties were
used to tie down the hood of Lynch’s truck because there was
“overwhelming objective evidence” that the zip ties were found
at the scene of the crime and with Lynch’s truck. Finally, the
court found the implication that detectives had committed
perjury and planted evidence to be “nothing but theory” and
“irrelevant” because there was not “a shred of evidence . . . that
that’s what occurred.” Based on the foregoing, the court denied
Lynch’s PCRA petition “in its entirety.”

¶83 To qualify as newly discovered evidence meriting relief,
Steed’s and Warren’s affidavits and testimony must, “when
considered with existing evidence, demonstrate that no
reasonable trier of fact could have reached the jury’s
conclusion.” Taylor v. State, 2012 UT 5, ¶ 26, 270 P.3d 471.
Although certain portions of Steed’s and Warren’s affidavits and
testimony are favorable to Lynch, they are not so compelling as
to demonstrate that no reasonable trier of fact could have found
Lynch guilty.

¶84 To begin with, regarding Detective Anderson’s alleged
recantation concerning the zip ties, Steed’s own testimony at the
hearing was contradictory. Steed initially testified that Detective
Anderson had told him no zip ties were found at the crime
scene, but he later admitted that he could not say “in all honesty
and without any reservation, that it was absolutely [Detective
Anderson]” who said there “were no zip-ties at the actual
scene.” Detective Anderson’s and Officer Ipson’s testimony also

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Lynch v. State

contradicted Steed’s testimony on this point. Detective Anderson
specifically denied telling Steed that “there were no zip-ties
found at the scene” or that “the zip-ties were used by police
officers to transport the vehicle.” And while Steed testified that
“Officer Ipson . . . fortified Detective Anderson’s comments and
agreed that the zip-ties were used by the police officers and not
recovered from the scene of the accident,” when Officer Ipson
testified, he stated that he never “visited [the] crime scene,” that
he was not “involved in the direct collection of evidence,” and
that his involvement in the case began “[o]nce the vehicle came
into [the] warehouse.” Moreover, Warren’s testimony that
Detective Anderson told him “that they had actually used those
zip-ties on the truck at the scene of the accident” was
contradicted by the undisputed evidence that investigators did
not find Lynch’s truck at the scene of the crime. Rather,
investigators found Lynch’s truck several days after the crime in
an abandoned garage.

¶85 As to the underlying claim that the zip ties were planted,
Detective Anderson testified that he was sure that the zip ties
“were found at the scene of the crash,” that there were about “10
to 15 people” at the scene when he arrived, and that he was
never alone at the scene. Detective Stewart verified that neither
he nor Detective Anderson was ever alone at the crime scene.
Detective Stewart also testified that he had observed three black
zip ties in the roadway at the scene and that he did not “know of
any other officers bringing them with them” to the scene.” This
testimony was supported by objective evidence in the form of
photographs from the crime scene showing several zip ties in the
roadway while the investigation was occurring in the
background.

¶86 In light of the foregoing, we agree with the State that
Steed’s and Warren’s testimony regarding Detective Anderson
would have created, “at most, a credibility contest for the jury.”
However, “[a] jury could rationally disbelieve” Steed and

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Lynch v. State

Warren “in view of other evidence” implicating Lynch,
including Detective Anderson’s testimony. See Wickham v.
Galetka, 2002 UT 72, ¶ 18, 61 P.3d 978. Consequently, Lynch has
not demonstrated that Steed’s and Warren’s affidavits and their
testimonies regarding Detective Anderson are such that “no
reasonable trier of fact could have found [Lynch] guilty.” See
Utah Code Ann. § 78B-9-104(1)(e)(iv) (LexisNexis 2012).

¶87 With regard to the use of the zip ties and the truck’s hood,
both Steed and Warren equivocated about key aspects of their
claims when they testified at the evidentiary hearing. For
example, while Steed initially testified that he “found the hood
latch [on Lynch’s truck] to be in good, working condition,” he
later clarified that “this was a typical hood latch for an older
truck,” “[m]eaning that it didn’t work as well as it should.” And
although Steed testified that he “could not find anything that
would have been conducive to needing zip-ties to hold anything
in place or to otherwise be used” on Lynch’s truck, he later
acknowledged that there was “absolutely” a “place on the front
of the [truck] to which a zip-tie could have been attached.”
Indeed, Steed suggested that “the grille, itself, could have had 30
or 40 of them on there.” Warren’s testimony was similarly
equivocal. Warren initially testified that he “didn’t see anything
where zip-ties could have been attached.” But on cross-
examination he acknowledged that “it’s possible the zip-ties
could have been attached to the grille” and that he did not have
“any real basis of knowledge about how this truck works or
what it does and doesn’t need.” And both Steed and Warren
acknowledged that they had not driven the truck and that they
had no “first-hand knowledge of how the hood performs when
it’s driven at high speeds.”

¶88 We agree with the State that “this testimony does not
prove that no reasonable juror could have found Lynch guilty.”
To begin with, as the State correctly observes, “[t]he issue in this
case isn’t whether the hood stays latched when the truck is

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Lynch v. State

standing still. Rather, the issue is whether the hood stays latched
when it is driven at high speeds.” Here, both Steed and Warren
admitted that they had no personal knowledge regarding “how
the hood performs when it’s driven at high speeds.” By contrast,
the owner of the garage where Lynch stored his truck submitted
an affidavit attesting that at least on one occasion, the truck’s
hood had blown open while Lynch was driving it. And the
truck’s previous owner signed an affidavit attesting that “while
he owned the pickup” “the hood latch was not working
properly.” Turning to the zip ties, neither Steed’s nor Warren’s
testimony definitively established that there was no need for zip
ties to secure the truck’s hood, and both Steed and Warren
acknowledged that the zip ties could have been attached to the
truck’s grille. Moreover, as the State observes, “even if the zip
ties were not actually used to secure the hood itself,” there was
evidence demonstrating that “there were zip ties in the road and
that they matched [a] zip tie fragment found in Lynch’s truck.”
Thus, the zip ties “were on the truck for something.” (Emphasis in
original.)

¶89 Finally, regarding the tow hook, although Steed and
Warren testified that they did not see a tow hook on Lynch’s
truck in February 2012, Lynch has failed to demonstrate that his
truck was in the same condition in 2012 as it was in 2007. And in
any event, the State never alleged that the tow hook was the only
possible source for Victim’s leg injury. Indeed, at trial, Detective
Anderson testified that there was a splash guard or spoiler on
the front of the truck which he thought might have caused
Victim’s leg injury. And DNA from a female was found on the
truck’s spoiler.

¶90 We conclude that a reasonable jury could have chosen to
disregard Steed and Warren’s proffered testimony regarding the
zip ties and the truck’s hood and convict Lynch based on the
other evidence presented at trial. Consequently, Lynch has not
demonstrated that Steed’s and Warren’s affidavits and

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Lynch v. State

testimony—when “viewed with all the other evidence”—are
such that “no reasonable trier of fact could have found [Lynch]
guilty.” See Utah Code Ann. § 78B-9-104(1)(e)(iv). We therefore
conclude that the postconviction court did not err in denying
Lynch’s newly discovered evidence claim. See Taylor v. State,
2007 UT 12, ¶ 13, 156 P.3d 739.

CONCLUSION

¶91 We conclude that the postconviction court correctly
granted the State’s motion for summary judgment on Lynch’s
ineffective-assistance claims and that the court correctly denied
Lynch’s newly discovered evidence claim. Accordingly, we
affirm.

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