2016 UT App 190
THE UTAH COURT OF APPEALS
ADRIAN GORDON,
Appellant,
v.
STATE OF UTAH,
Appellee.
Opinion
No. 20140518-CA
Filed September 1, 2016
Third District Court, Salt Lake Department
The Honorable John Paul Kennedy
No. 090917952
Matthew M. Durham, David J. Williams, Jill M.
Pohlman, and Jensie L. Anderson, Attorneys
for Appellant
Sean D. Reyes and Erin Riley, Attorneys for Appellee
JUDGE KATE A. TOOMEY authored this Opinion, in which JUDGE
GREGORY K. ORME and SENIOR JUDGE RUSSELL W. BENCH
concurred.1
TOOMEY, Judge:
¶1 Adrian Gordon appeals the district court’s order granting
summary judgment in favor of the State and dismissing his
petition for post-conviction relief with prejudice. We affirm.
1. Senior Judge Russell W. Bench sat by special assignment as
authorized by law. See generally Utah R. Jud. Admin. 11-201(6).
Gordon v. State
BACKGROUND
¶2 Lee Lundskog2 was found dead outside a convenience
store in Salt Lake County in the early morning of September 29,
2001. The State’s chief medical examiner (Medical Examiner)
conducted an autopsy and determined that the manner of death
was homicide, caused by numerous blows to Lundskog’s head.
An eyewitness, Gustavo Diaz-Hernandez, reported that he saw
someone repeatedly kicking and stomping Lundskog’s head.
According to Diaz-Hernandez, Lundskog’s attacker was a
muscular black male with short hair wearing a light-colored
shirt, baggy shorts, and white tennis shoes. Gordon fit this
description and was filmed by the store’s surveillance video
camera around the time Lundskog was killed. Diaz-Hernandez
later identified Gordon as the assailant. Another witness, Robert
Mellen, saw Gordon wave Lundskog toward him shortly before
Diaz-Hernandez witnessed someone stomping on Lundskog’s
head. The surveillance video corroborated the timeline of events
testified to by Diaz-Hernandez and Mellen, but did not capture
the murder itself.
¶3 Gordon was arrested for Lundskog’s homicide and was
ultimately convicted of first-degree murder after a bench trial.
Gordon appealed, arguing the evidence was insufficient to
support the verdict. The Utah Supreme Court affirmed the
conviction, concluding that ‚*a+mple evidence supports
2. Typically this court does not use victim and witness names in
a decision, but their identities in this case are well known and
were published in the Utah Supreme Court’s decision on
Gordon’s direct appeal. See generally State v. Gordon, 2004 UT 2,
84 P.3d 1167. Thus, ‚obscuring *Lundskog’s and the witnesses’
identities+ in this decision would serve no purpose.‛ See State v.
Chavez-Reyes, 2015 UT App 202, ¶ 1 n.2, 357 P.3d 1012.
20140518-CA 2 2016 UT App 190
Gordon v. State
Gordon’s conviction.‛ State v. Gordon, 2004 UT 2, ¶¶ 1, 14, 84
P.3d 1167.
¶4 Thereafter, Gordon arranged for new counsel, who began
collecting documents related to his case. On October 13, 2008, the
police department provided Gordon’s attorneys with a CD
containing documents related to its investigation. Upon
reviewing the CD, Gordon’s attorneys discovered images of
some handwritten notes (the Notes) made by a detective
(Detective) that were never disclosed to Gordon’s trial counsel.
Detective wrote the Notes during the autopsy of Lundskog’s
body, and they contain Detective’s own observations and
memorialize statements made by Medical Examiner. The Notes
appear to say ‚Not characteristic of ‘Baseball Bat’‛ ‚Instrument‛
‚More rough & uneven Edges & surface.‛ In addition, according
to Gordon, he learned for the first time on October 23, 2009, that
a blood-spattered cement fence panel found lying next to
Lundskog’s body was not preserved as physical evidence.
¶5 On October 28, 2009, Gordon filed a petition for relief
pursuant to the Post-Conviction Remedies Act (PCRA), claiming
that his constitutional rights to due process and to the effective
assistance of counsel were violated. The petition raised three
grounds for relief. First, Gordon alleged that his right to due
process was violated when the State withheld the exculpatory
evidence contained in the Notes. Second, Gordon alleged that his
right to due process was violated when the police failed to
collect or preserve the cement panel that was ‚critical physical
evidence from the crime scene.‛ Third, Gordon alleged that if the
court determined that the Notes or the cement panel were
available to him at trial or could have been discovered through
reasonable diligence, his trial counsel was constitutionally
deficient for failing to discover or present the Notes or the
cement panel at trial and for failing to present expert testimony
to refute the State’s evidence as to the manner of Lundskog’s
death.
20140518-CA 3 2016 UT App 190
Gordon v. State
¶6 The parties filed cross-motions for partial summary
judgment on Gordon’s first ground for relief.3 Gordon argued
that his due process rights had been violated by the State’s
failure to disclose the Notes before trial, whereas the State
contended that Gordon suffered no prejudice from the
suppression of the Notes. The district court agreed with the
State. The court first explained that the parties agreed the State
suppressed the Notes and that, for purposes of summary
judgment, a reasonable inference existed that the Notes were
favorable to Gordon. The only remaining issue, as the court
further explained, was whether Gordon was prejudiced by the
State’s failure to disclose the Notes. The resolution of this
question turned on whether the Notes were material, that is,
whether their suppression undermined confidence in the
outcome of Gordon’s trial.
¶7 The district court explained that although the precise
implication of the Notes was unclear, it accepted Gordon’s
interpretation: the words ‚Not Characteristic of ‘Baseball Bat,’‛
‚Instrument,‛ ‚More rough & uneven Edges and surface‛
referred to the instrument involved in the attack. Put another
way, the Notes suggested that the instrument involved in
Lundskog’s murder had more rough and uneven edges and
3. The State moved for summary judgment and sought to
dismiss the entire petition on the basis that Gordon’s claims
were time-barred. The district court denied this aspect of the
State’s motion. It noted that the PCRA’s one-year statute of
limitations period begins to run when the petitioner knew or
should have known, in the exercise of reasonable diligence, of
the evidentiary facts on which the petition is based, and it ruled
that questions of fact precluded summary judgment on this
basis. It explained, ‚The Court cannot conclude as a matter of
law that Gordon knew or should have known of the evidentiary
facts underlying his Petition prior to October 28, 2008.‛
20140518-CA 4 2016 UT App 190
Gordon v. State
surface than a baseball bat.4 The court concluded that the Notes
were not material and Gordon was not prejudiced by the State’s
failure to disclose them before trial. It reasoned that the State’s
theory at trial was that Lundskog was stomped to death by a
person wearing sneakers with a ‚waffle type pattern‛ on the
bottom.5 The court further reasoned, ‚A shoe with a ‘waffle
4. The district court also noted another possible, reasonable
interpretation of the Notes, namely, that the Notes described the
victim’s injuries. Under this interpretation, the court believed
that Gordon’s first ground for relief would fail because the Notes
would provide no basis to impeach the State’s witnesses.
Nevertheless, for purposes of summary judgment, the court
accepted Gordon’s interpretation of the Notes.
5. Gordon claims there was no evidence introduced that the
assailant was wearing a shoe with a waffle-type pattern. The
State concedes that ‚there was no evidence at trial that the
murderer wore shoes with a waffle pattern.‛ Nevertheless, Diaz-
Hernandez testified that the assailant wore white tennis shoes,
and the State’s opening and closing statements at trial contended
that bloody footprints were a corroborating detail because they
were near the body and went in the direction Diaz-Hernandez
said he watched the assailant move. In closing, the State argued
that the footprints were Gordon’s and the footprints came from
the same right foot. The prosecutor also cited ‚[Medical
Examiner]’s testimony as to the injuries, that those injuries were
consistent with someone stomping on the head of . . . the
victim.‛ Although the word ‚waffle‛ is not in the trial transcript,
the pictures of the bloody footprints clearly show that the sole
had a waffle pattern along with the name Reebok. Taking these
exhibits together with the State’s position that the footprints
corroborated Diaz-Hernandez’s testimony about the assailant’s
movements, the State’s theory essentially was that ‚Lundskog
(continued<)
20140518-CA 5 2016 UT App 190
Gordon v. State
pattern’ unquestionably has . . . more rough and uneven edges
and surface than a baseball bat (which is completely smooth and
has no edges), especially when the shoe is being used to stomp
with the heel.‛ Thus, in the district court’s view, the Notes were
not inconsistent with the State’s evidence at trial or its theory
regarding the manner of death. It further concluded that
although Gordon could have ‚used the Notes to question
[Medical Examiner] and Detective . . . and maybe find some
measure of disagreement,‛ they ‚cannot ‘reasonably be taken to
put the whole case in such a different light as to undermine
confidence in the verdict or sentence.’‛ (Quoting Tillman v. State,
2005 UT 56, ¶ 31, 128 P.3d 1123.) Because the court believed
Gordon received a fair trial with a ‚‘verdict worthy of
confidence,’‛ it determined that his due process rights were not
violated by the State’s failure to disclose the Notes before trial.
(Quoting id. ¶ 30.) Accordingly, the court denied Gordon’s
motion for summary judgment and granted the State’s motion
on Gordon’s first ground for relief.
¶8 Later, the State filed another motion for summary
judgment, this time arguing that Gordon’s remaining grounds
for relief were procedurally barred and failed on their merits.
The district court granted this motion. In its ruling, the court
determined that Gordon’s second and third grounds for relief
were both procedurally barred and meritless.
¶9 The court based its rulings on a provision of the PCRA
providing that a person is not eligible for relief on any ground
that could have been but was not raised at trial or on appeal.
Utah Code Ann. § 78B-9-106(1)(c) (LexisNexis 2012). Regarding
the second ground for relief, based on the State’s failure to
(