This opinion is subject to revision before final

publication in the Pacific Reporter.

2015 UT 56

IN THE

SUPREME COURT OF THE STATE OF UTAH

———————

JOHN R. PINDER, 

Appellant,

v.

STATE OF UTAH,

Appellee.

———————

No. 20121038

Filed July 21 , 2015

———————

Fourth District, Heber Dep’t

The Honorable Lynn W. Davis

No. 060500155

———————

Attorneys:

Brent Gold, Park City, Andrew Parnes, Ketchum, Idaho,

for appellant

Sean Reyes, Att’y Gen., Ryan D. Tenney, Brett J. DelPorto, 

Ass’t Att’y Gen., Salt Lake City, for appellee

———————

ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court, in 

which CHIEF JUSTICE DURRANT, JUSTICE DURHAM, JUSTICE PARRISH,

and JUDGE CHRISTIANSEN joined.

Due to his retirement, JUSTICE NEHRING did not participate herein; 

COURT OF APPEALS JUDGE MICHELE M. CHRISTIANSEN sat.

JUSTICE DENO G. HIMONAS became a member of the Court on 

February 13, 2015, after oral argument in this matter, and 

accordingly did not participate.

———————

ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court: 

¶1 John Pinder was convicted of two counts of aggravated 

murder and related crimes in 2000. We affirmed those convictions 

in State v. Pinder, 2005 UT 15, 114 P.3d 551. Pinder subsequently 

filed a petition for relief under the Post-Conviction Remedies Act 
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Opinion of the Court

(PCRA). The district court dismissed Pinder’s PCRA claims on 

summary judgment, and this appeal followed. 

¶2 Pinder asserts two sets of claims for relief. First, he presents 

testimony from two new witnesses, purportedly to establish that 

he was not the killer. Second, he asserts that the State knowingly 

introduced perjured testimony and fabricated evidence at trial, in 

violation of his right to due process. Pinder challenges the district 

court’s dismissal of those claims. And he also finds error in the 

court’s refusal to grant his motions for discovery and to amend 

his PCRA pleadings.

¶3 We affirm. Pinder’s newly discovered evidence claims fail 

on their merits, as he has failed to demonstrate that a reasonable 

jury could not enter a judgment of conviction in light of the new 

testimony he identifies. The due process claims, on the other 

hand, are procedurally barred. And finally, there was no abuse of 

discretion in the denial of Pinder’s discovery motion and motion 

to amend. 

I

¶4 John Pinder owned a sprawling ostrich ranch in Duchesne 

County. He and his ranch-hand, Filomeno Ruiz, were accused 

(and ultimately convicted) of murdering June Flood and Rex Tanner. Flood and Tanner also worked on Pinder’s ranch.

¶5 According to the evidence at trial,1 Ruiz staged a fight with 

his girlfriend, Mandy Harris, on the day of the alleged murder. 

The purpose of the staged fight was to get Harris away from the 

ranch. Ruiz called 911 during this staged altercation. Harris left 

after the police showed up. And the 911 call was recorded by the 

local dispatch. 

¶6 That evening, Pinder, his girlfriend Barbara DeHart, Ruiz, 

and Pinder’s employees Joe Wallen and David Brunyer (along 

with Brunyer’s wife) gathered around a campfire to drink. At 

some point the conversation turned to the “shrunken heads” that 

Pinder and DeHart had seen at a curiosity shop in Seattle. Eventually Pinder spoke of his hopes to someday acquire one. Pinder 

1 The statement of facts below is presented in a light favorable to 

the prosecution, and consistent with the judgment of conviction.

2

 
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Opinion of the Court

said to Ruiz, “let’s go get some heads.” Ruiz responded with a 

question: “four or two?” Pinder replied, “two.” 

¶7 After grabbing a baseball bat, Pinder and Ruiz drove to the 

home where Flood and Tanner resided. Pinder violently assaulted 

Flood and Tanner, kidnapped them, and then shot them both with 

a 10 mm pistol. Pinder and Ruiz then left the murder scene and 

later returned with ammonium nitrate and dynamite, packed the 

bodies with the explosives, and set them off. 

¶8 Pinder later got others to help him hide the remains. Following a day of bulldozing the blast site, Pinder and Ruiz 

dropped several black garbage bags of body parts into a barrel 

and set them ablaze. Pinder, DeHart, and Ruiz then met with the 

Brunyers for dinner, after which Pinder and Ruiz returned to the 

lake to collect more parts for burning. 

¶9 Tuesday morning, at Pinder’s behest, Ruiz and Brunyer 

went to the Flood home armed with a bottle of alcohol and some 

rags to remove fingerprints and tidy up. After returning, Brunyer 

complained about the smell of the Flood residence, to which 

Pinder quipped, “[T]hat’s because [Tanner] shit his pants when I 

shot him.” Pinder, Ruiz, and Brunyer then spent the day bulldozing and gathering more body parts for disposal. After coming 

across Tanner’s wrist watch, Pinder callously joked that it must 

have been a Timex, because “it was still ticking.” Eventually the 

bulldozer ran out of gas. And when they went to get more, 

Brunyer asked Pinder why he killed Flood and Tanner, to which 

Pinder replied, “[T]hey were liars, thieves and maggots, and now 

they’re vaporized . . . no one will miss them anyway.” Upon arriving home that evening, Brunyer’s daughter could see he was upset. He recounted the gruesome tale to his daughter. She took 

notes and then taped them to the inside of her dresser drawer after having Brunyer read over and approve them. 

¶10 By Thursday, October 29th, Pinder and DeHart had left the 

state, eventually arriving in Cataldo, Idaho. That Sunday, DeHart 

contacted her daughter Melissa Cowles and told her that over the 

last couple of days Pinder “had admitted to killing some people 

on the ranch”; that they had been “[c]leaning up the evidence”; 

that she had found “a bag of . . . what looked like bloody hair and 

scalp” in Pinder’s truck, which she then threw away; and that 

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Opinion of the Court

they had “thrown the murder weapon off [a] bridge and into the 

river.” DeHart had said they were “like Bonnie and Clyde, always 

on the run.” That same day DeHart called her father, Bernie 

Knapp, and told him “she helped clean blood and mess out of 

[John Pinder’s] truck,” that “they had some bloody clothing and 

items in bags that they had [tossed in dumpsters in] little towns 

on the way up on their trip,” and that they “either had gotten rid 

of a gun or were in the process of getting rid of a gun.” 

¶11 Meanwhile, back at the ranch, an investigation was underway. One of Flood’s friends reported her missing, and police officers searched the Flood residence. Police discovered the home in 

utter disarray, with blood on the bed sheets and the backrest of a 

chair in the living room. They also found a pair of excrementstained pants in the bathroom. After leaving the home, the investigating officer saw and approached Brunyer, who was standing 

nearby. Brunyer appeared “[v]ery agitated, very nervous, [and] 

scared to death,” but handed the officer the letter his daughter 

had written and the bottle of alcohol with which he had assisted 

in cleaning up the home. 

¶12 Pinder and DeHart arrived back in Salt Lake on November 

4th. On that day they decided to appear on KSL News for a television interview about the murders. Shortly thereafter, Pinder, Ruiz, 

and DeHart were all arrested. Investigators later searched 

Pinder’s ranch and found a gruesome assortment of the victims’ 

remains strewn about the area, stuck in bushes, and hanging from 

trees. They also searched Pinder’s truck and found a 10 mm shell 

casing, one of the victim’s thumbprints on the inside of a window, 

and some bloodstains (one identified as Pinder’s, the other unidentified). Police also determined that the rear windows had been 

wiped down and cleaned, as well as the mid-section of the door 

jam. 

¶13 Ruiz pled guilty to two counts of murder. He denied being 

the shooter, accusing Pinder instead. DeHart was charged with 

and later convicted of obstruction of justice. State v. DeHart, 2001 

UT App 12, 17 P.3d 1171. And Pinder was charged with two 

counts of aggravated murder, two counts of aggravated kidnapping, two counts of tampering with evidence, one count of burglary of a dwelling, one count of possession of explosives, and two 

counts of desecration of a body. 

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Opinion of the Court

¶14 While being held in the Summit County Jail before his preliminary hearing, Pinder met an inmate named Newly Welch. 

Pinder bragged to Welch about killing Tanner and Flood and 

blowing up their bodies. He told Welch that the day of the murders, he and Ruiz staged a fight with Ruiz’s girlfriend to get her 

off of the ranch. Welch then asked Pinder what it was like to kill 

someone. And in response, Pinder put his hand on Welch’s 

shoulder and said, “[T]here’s no bigger rush[,] especially when 

you know you’re going to get away with it.” Pinder was convicted 

on all counts and sentenced to life with the possibility of parole on 

the aggravated murder charges, and to consecutive statutory 

terms on the other counts. 

¶15 Pinder filed a motion for a new trial. For various reasons, 

the motion took two years to resolve. During the eventual evidentiary hearing on the new trial motion, Pinder presented several 

newly discovered witnesses—Joey Silva (an inmate who allegedly 

spent time with Ruiz), Robert Brunyer (David Brunyer’s brother), 

and Kristy Barnes. Each of these witnesses testified, in one way or 

another, that Ruiz and David Brunyer were actually the killers. 

The district court found none of the new witnesses credible; indeed, the court expressly found each of them to be seriously lacking in trustworthiness and accordingly denied the motion. Pinder 

appealed, and we unanimously affirmed his conviction. State v. 

Pinder, 2005 UT 15, 114 P.3d 551.

¶16 Pinder filed this petition for post-conviction relief in 2006. 

He presented two main theories of relief. First, he claimed that 

newly discovered evidence would exonerate him. Pinder brought 

affidavits from two more inmates who had spent time with Ruiz 

while incarcerated: Beau Heaps and Danny Alvarez. The Alvarez 

affidavit stated that while in the Duchesne County Jail, Ruiz told 

Alvarez that he and a “gavacho”2 committed the murders but that 

Pinder had “nothing to do with it.” The Heaps affidavit stated 

that Heaps met Ruiz at the Utah State Prison and that Ruiz similarly told him that Ruiz and another man—not Pinder—were the 

murderers. 

2 This was an apparent reference to Pinder, or at least to a white 

man. See WEBSTER’S NEW WORLD SPANISH DICTIONARY 229 (1992)

(defining “gabacho,” as used in Mexico, as “foreigner”). 

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¶17 Pinder’s second claim was based on the allegation that the 

State had violated his due process rights by knowingly presenting 

perjured testimony from Welch and by falsifying evidence concerning the 911 recording of the fight between Ruiz and Harris. To 

support his claims regarding Welch, Pinder provided an affidavit 

from a defense investigator who claimed that Welch admitted to 

lying on the stand but that he would not testify regarding his own 

perjury until “he was released from probation.” With respect to 

the 911 tapes, Pinder submitted lengthy expert analyses of the 911 

recordings of the Ruiz/Harris “fight.” This analysis concluded 

that the 911 call recordings from the days of October the 24th and 

25th were “not pristine,” had in some way been “altered” and 

“tampered with by exporting and editing,” and that these files 

could not “be deemed reliable.” Based on these expert reports, 

Pinder concluded that: (1) the police had altered the recordings of 

the 911 call to make the Ruiz/Harris fight appear to have happened on Sunday the 25th rather than on Saturday the 24th; and 

(2) the State then used this fabricated date as a “baseline” in order 

to coax witnesses at trial to believe that all the events happened 

on Sunday rather than Saturday. 

¶18 Discovery lasted three years, largely because of a drawn 

out battle over disqualification of the district court judge. During 

this time, both Ruiz and Alvarez were deposed. In 2009, at the 

close of discovery, the State moved for summary judgment on 

several grounds. The State first addressed the newly discovered 

evidence claims, arguing that they “could . . . have been discovered through the exercise of reasonable diligence,” UTAH CODE

§ 78B-9-104(1)(e)(i), were merely cumulative of other evidence, 

were merely for impeachment, and in any event would not have 

changed the outcome of trial. Turning to the due process claims, 

the State first invoked the procedural bar limitations in the PCRA. 

UTAH CODE § 78B-9-106(1)(c). It argued that the due process 

claims “could have been but [were] not raised at trial or on appeal,” or during Pinder’s new trial motion. Id. Next, the State argued that Pinder failed to establish that the State “knew or had 

reason to believe Welch’s testimony was false.” Over a year later, 

Pinder filed a response, a motion to amend the petition, and a motion for additional discovery. 

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Opinion of the Court

¶19 The district court granted summary judgment in favor of 

the State. It first held, with respect to new evidence, (1) Pinder 

failed to show that the Heaps and Alvarez testimony could not 

have been discovered by the exercise of reasonable diligence, 

(2) the evidence was merely cumulative and merely for impeachment, and (3) even if the evidence were considered, it did not establish that the newly discovered evidence would make it impossible for a reasonable jury to render a guilty verdict. Turning to 

the due process claims, the court dismissed them both as procedurally barred because they could have been brought “during 

Pinder’s motion for a new trial or on appeal.” The court also ruled 

on the merits of both the Welch claim and the 911 claim, holding 

that Pinder had failed to shoulder his burden of showing that the 

State knew or should have known that both the Welch testimony 

and the 911 tapes were false. The court never expressly addressed 

Pinder’s motion for additional discovery. But it effectively denied 

the motion by granting the State’s motion for summary judgment. 

As for the motion to amend, the court denied it in its order granting summary judgment, but without explaining its reasons for doing so. 

¶20 Pinder filed this appeal. In considering his challenge to the 

district court’s summary judgment decision, our review is de novo. Archuleta v. Galetka, 2011 UT 73, ¶ 25, 267 P.3d 232. As for the 

district court’s mixed determinations denying Pinder’s motion to 

conduct further discovery and motion to amend, we review them 

under an abuse of discretion standard. See Workers Comp. Fund v. 

Utah Business Ins. Co., 2013 UT 4, ¶ 7, 296 P.3d 734; Dahl v. Dahl, 

2015 UT 23, ¶ 162, 345 P.3d 566.

II

¶21 The PCRA provides post-appeal means for challenging a 

prior conviction. UTAH CODE § 78B-9-104(1). Two of the PCRA’s 

provisions for relief are implicated here. First is the provision authorizing a person to seek relief based on a showing that “newly 

discovered material evidence exists that requires the court to vacate the conviction.” Id. § 78B-9-104(1)(e). Second is a provision 

authorizing a person to challenge a conviction that “was obtained 

. . . in violation of the United States Constitution.” Id. § 78B-9-

104(1)(a). Pinder brings two claims under each of these provisions. 

As to new evidence, Pinder claims that the testimony of Heaps 

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and Alvarez demonstrates that Ruiz and Brunyer were the killers. 

And as to the claim that his conviction was obtained in violation 

of the Constitution, he contends that the testimony of Newly 

Welch was perjured and that the date of the 911 call was falsified, 

such that use of this evidence violated his rights to due process. 

We reject each claim for the reasons set forth below.

¶22 First, neither the Heaps nor the Alvarez testimony could 

have been discovered with reasonable diligence. So Pinder’s argument can advance beyond that phase of the inquiry. But Pinder 

fails to show that no reasonable fact finder could convict him in 

light of this new evidence. We reject his newly discovered evidence claims on that basis.

¶23 Second, both of Pinder’s due process claims are procedurally barred because they could have been but were not brought at 

trial or on appeal. Moreover, Pinder has not properly invoked any 

of the so-called common law exceptions to the PCRA available to 

him as a pre-2008 filer under Hurst v. Cook, 777 P.2d 1029 (Utah

1989).

¶24 Finally, we see no abuse of discretion by the district court 

in denying Pinder’s motions for additional discovery and to 

amend. The district court did not give its reasons for denying these motions, but we affirm on grounds apparent on the record—

because both motions were filed at an advanced stage of the litigation and because the discovery motion was never properly noticed for decision.

A. Newly Discovered Evidence

¶25 Pinder’s first assertion in his petition is that he has discovered new evidence—the testimony of inmates Beau Heaps and 

Danny Alvarez—that would eliminate any basis for a reasonable 

judgment of conviction. See UTAH CODE § 78B-9-104(1)(e). Both 

inmates alleged that Ruiz confessed that he was in fact the triggerman and that his accomplice was not Pinder but Brunyer. In 

the State’s view, however, Pinder has failed to shoulder his burden of showing that he did not know (or could not have known 

through the exercise of reasonable diligence) about Heaps’s testi8
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mony in time to include it in Pinder’s post-trial motion,3 see id.

§ 78B-9-104(e)(i); that the evidence is more than “merely cumulative of evidence that was known” and more than “merely impeachment evidence,” id. § 78B-9-104(e)(ii)–(iii); and that when 

taken together “with all the other evidence” this testimony 

demonstrates that “no reasonable trier of fact could have found” 

Pinder guilty. Id. § 78B-9-104(1)(e)(iv). We agree with Pinder on 

the first point. But we affirm on the ground that the evidence 

would not have made any difference anyway.

¶26 First, we conclude that Pinder has met his burden of showing that the Heaps testimony was not known to Pinder and “could 

not have been discovered through the exercise of reasonable diligence,” id. § 78B-9-104(1)(e)(i), at least when the reasonable inferences due Pinder as the nonmoving party are taken into account. 

See Torrie v. Weber Cnty., 2013 UT 48, ¶ 7, 309 P.3d 216 (“[We] . . .

view[] the facts and all reasonable inferences drawn therefrom in 

the light most favorable to the nonmoving party.” (internal quotation marks omitted)). As Pinder notes, Heaps testified in his affidavit that “he met Ruiz at the State prison.” Moreover, Pinder asserts—and it is undisputed—that Pinder was housed in the Wasatch County Jail throughout the proceedings in the trial court 

(including the new trial motion).4 These allegations may not mandate the conclusion that Pinder was ignorant of the Heaps-Ruiz 

conversation. It is conceivable that Pinder and Heaps knew each 

other prior to Pinder’s transfer to the state prison. Or that they 

were corresponding while Pinder was housed at the Wasatch 

County Jail during Pinder’s proceedings in the trial court. But requiring Pinder to disprove that series of events through direct evidence is not what is required on summary judgment. Pinder is 

required only to put on evidence that produces a reasonable infer3 Below, the State conceded the reasonable diligence prong of 

the newly discovered evidence analysis. Surprisingly, the district 

court nonetheless held that Pinder could have discovered this evidence by the exercise of reasonable diligence. On appeal the State 

confesses error as to this matter. Accordingly, we address only the 

reasonable diligence inquiry with respect to the Heaps testimony. 

4 Though he did have a small stint at the Duchesne County Jail. 

Supra ¶ 16.

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Opinion of the Court

ence that he did not know about the conversation between Heaps 

and Ruiz until after his new trial motion. And we are convinced 

that he has done so.

¶27 Similarly, we are satisfied that Pinder has met his burden 

of demonstrating that “the exercise of reasonable diligence” 

would not have led him to have discovered the Heaps testimony 

before he filed the new trial motion. Perhaps counsel could have 

subpoenaed and deposed every inmate with whom Ruiz may 

have had contact while being housed at the state prison. But the 

PCRA does not require such heroic efforts; it requires only reasonable diligence. 

¶28 That said, Pinder still falls short of carrying the burden assigned to him under the PCRA. To succeed in advancing his new 

evidence claims under the PCRA, Pinder must establish three other elements. First, he must demonstrate that the evidence was not

“merely cumulative of evidence that was known.” Id. § 78B-9-

104(1)(e)(ii). Second, he must establish that it was not “merely impeachment evidence.” Id. § 78B-9-104(1)(e)(iii). And finally, he 

must demonstrate that the newly discovered evidence—when 

“viewed with all the other evidence”—is such that “no reasonable 

trier of fact could have found the petitioner guilty.” Id. § 78B-9-

104(1)(e)(iv). These elements are listed separately. But as applied 

here, they overlap substantially, in a manner reinforcing a unifying principle: a petitioner seeking to challenge a new conviction 

on the basis of new evidence must establish that the new evidence 

is truly new and clearly would have made a difference.

¶29 The elements of a newly discovered evidence claim under 

the PCRA trace their roots to the historical standard governing 

motions for a new trial—a standard first articulated in Berry v. 

State, 10 Ga. 511 (Ga. 1851). Long before the adoption of the 

PCRA, our court embraced the standard set forth in Berry.5 The 

5 See State v. Gellatly, 449 P.2d 993, 995–96 (Utah 1969) (“Newly 

discovered evidence, to be a ground for a new trial, must fulfill 

the following requirements: (1) It must be such as could not with 

reasonable diligence have been discovered and produced at the 

trial; (2) it must not be merely cumulative; (3) it must be such as to 

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Berry test listed the consideration of the merely “cumulative” nature of the evidence as separate from the analysis of the effect on 

the result. Id. at 527–28. Yet under longstanding caselaw, these elements are viewed as overlapping and mutually reinforcing. 

¶30 The Virginia Supreme Court may have put it best:

Evidence is said to be cumulative when it is of the 

same kind, to the same point, and the discovery of 

such evidence after verdict is, as a rule, no ground 

for a new trial. Its exclusion, however, is not by virtue 

of any independent rule, but rather as a corollary of the 

rule that the newly discovered evidence must be such 

as would probably produce a different result on the merits. Generally, evidence that is merely cumulative, 

corroborative, or collateral, ought not and probably 

would not produce a different result on the merits, 

and for that reason is excluded . . . .

Johnson v. Commonwealth, 101 S.E. 341, 343 (Va. 1919) (emphasis added). 

¶31 Thus, evidence that is cumulative (going to the same point 

already made at trial) or that is for impeachment (showing that a 

witness might not have been credible) is singled out as being particularly unlikely to change the result of the trial. So, under the Berry test, when courts inquire as to whether something is “merely

cumulative” or “merely” for impeachment, they are ultimately 

asking whether newly discovered evidence is weighty enough to 

have changed the verdict.6 All three inquiries reinforce a central 

theme. Evidence is “merely cumulative” or “merely” for “impeachment” if it is unlikely to have affected the outcome of trial.

¶32 Our longstanding caselaw in the new trial setting is to this 

effect. When we have spoken of “cumulative” evidence in the new 

render a different result probable on the retrial of the case.”); accord Klopenstine v. Hays, 57 P. 712, 714 (Utah 1899).

6 3 CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND 

PROCEDURE, FEDERAL RULES OF CRIMINAL PROCEDURE § 584, at 461–

62 (4th ed. 2011) (“The requirement that the evidence be material 

and not cumulative is closely related to the requirement that the 

evidence be such that it would probably produce an acquittal.”).

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trial context, it has been in highlighting such evidence as especially unlikely to change the outcome of a trial.7 Our more recent cases are along the same lines.8

¶33 We interpret subsections 104(1)(e)(ii) and (iii) of the PCRA 

to incorporate the term-of-art-usage of “merely cumulative” and 

“merely impeachment” evidence as those terms are employed in 

the context of a new trial motion. We hold, specifically, that evidence is “merely cumulative” or “merely impeachment” evidence 

if it is insufficient to sustain the conclusion that “no reasonable 

trier of fact could have found the petitioner guilty.” UTAH CODE

§ 78B-9-104(1)(e)(iv). And we affirm the judgment in this case on 

the ground that Pinder has failed to make such a showing.

7 State v. Molitz, 122 P. 86, 88 (Utah 1912) (affirming denial of 

new trial motion because the newly discovered evidence “merely 

confirm[ed] or impugn[ed] the statements of other witnesses, and

hence nothing [was] really added to the weight of the evidence either 

way” (emphasis added)); State v. Haworth, 73 P. 413, 414 (Utah 

1903) (“Newly-discovered evidence which is impeaching is 

looked upon with equal distrust as cumulative evidence, and in 

no instance should a new trial be granted unless it clearly appears 

that the newly-discovered evidence would probably change the result on 

a retrial.” (emphasis added)); Larsen v. Onesite, 59 P. 234, 235 (Utah 

1899) (affirming denial of new trial motion based on allegedly 

newly discovered witnesses because the testimony “was cumulative in its character” and if produced, “the findings of the trial 

court would [not] have been different from what they were”); Foster v. Reich, 1 Utah 192, 192 (Utah Terr. 1875) (affirming denial of a 

new trial motion because “newly discovered evidence” was only 

“cumulative,” in that “most of it would have been unimportant upon the trial, had it been known and used at that time” (emphasis 

added)).

8 See, e.g., State v. James, 819 P.2d 781, 794–95 & n.41 (Utah 1991) 

(overturning trial court’s decision that newly discovered evidence 

was “merely cumulative” because the evidence was “different [in]

kind and nature” than the evidence introduced at trial, and hence 

“certainly could have a different quality in the eyes of the jurors 

who assess[ed] the credibility of witnesses”).

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¶34 The Heaps and Alvarez testimony would have supported 

Pinder’s theory at trial (and on the new trial motion) that Ruiz 

was the triggerman. And it would have marginally eroded Ruiz’s 

credibility. But there was still plenty of evidence to sustain a reasonable judgment of conviction. At trial, David Brunyer testified 

that Pinder told him: “I shot [Tanner],” that Flood and Tanner 

were “liars, thieves and maggots,” and that Pinder “vaporized” 

them both. And the evidence suggested that Pinder then ordered 

Brunyer and others to help sanitize of the crime scene. Brunyer 

conveyed all of this to his daughter, who copied it down in a letter. According to DeHart’s father and daughter, Pinder “admitted 

to killing some people on the ranch,” and that Pinder and DeHart 

spent a few days like “Bonnie and Clyde” “[c]leaning up the evidence” and “throw[ing] the murder weapon off [a] bridge into the 

river.” Welch also testified of Pinder’s confessions.9 According to 

Welch, Pinder told him nonpublic information about the case and 

gloated about the “rush” of killing someone “when you know 

you’re going to get away with it.” 

¶35 Adding the evidence advanced by Pinder in his new trial 

motion—the testimony of Robert Brunyer, Kristy Barnes, and Joey 

Silva—changes the evidentiary picture only marginally. After various hearings on the motion, the district court found all of these 

witnesses to be seriously wanting in credibility. As to Robert 

Brunyer, the court found that he was “not credible” and that 

“much of his testimony is inconsistent with absolutely established, known undisputed facts.” Kristy Barnes fared no better. 

Her testimony was filled with “lie[s],” and contradicted by both 

state and defense witnesses. And as for Joey Silva, the court found 

him to be a “‘bamboozler’ and professional scam artist.” The court 

found “it difficult to conceive of a less trustworthy witness.”

¶36 The addition of the Heaps and Alvarez testimony adds 

something to Pinder’s theory that Ruiz was the one who shot Flood 

and Tanner. But a reasonable jury would still be well within its 

prerogative to convict Pinder based on the evidence it had before 

it. The “mere possibility” that new evidence “might have helped 

9 As noted below, any claim that Welch’s testimony was perjured and that its introduction violated Pinder’s due process 

rights is procedurally barred. Infra ¶¶ 37–41.

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the defense or might have affected the outcome” is insufficient to 

merit relief under the PCRA. Medel v. State, 2008 UT 32, ¶ 50, 184 

P.3d 1226 (internal quotation marks omitted).10 Accordingly, we 

affirm the district court’s grant of summary judgment in favor of 

the State as to Pinder’s newly discovered evidence claims.

B. Due Process Claims

¶37 Pinder’s next grounds for relief under the PCRA are in his

claims that his conviction “was obtained . . . in violation of the 

United States Constitution.” UTAH CODE § 78B-9-104(1)(a). In this 

claim, Pinder argues that the State violated his rights to due process under the Fourteenth Amendment when it (1) knowingly put 

on Welch’s perjured testimony and (2) knowingly used a falsified 

version of the 911 tapes to guide witnesses’ testimony as to the 

date of the Ruiz/Harris “fight” (and hence the murders). See 

Mooney v. Holohan, 294 U.S. 103, 113 (1935) (holding that the Due 

Process Clause prohibits the knowing use of falsified testimony or 

evidence by the prosecution). The State responds by asserting that 

both of these claims are procedurally barred, that Pinder has not 

properly invoked any exceptions to the procedural bar, and that 

in any event the claims fail on their merits.

¶38 We agree with the State, at least in part. For reasons explained below, we hold that both the Welch claim and the 911

tapes claim are procedurally barred because they “could have 

been but [were] not raised at trial or on appeal.” UTAH CODE

§ 78B-9-106(1)(c). We also conclude that Pinder has failed to 

properly invoke any of the so-called common law exceptions to 

the pre-2008 PCRA’s procedural bar requirements under Hurst v. 

Cook, 777 P.2d 1029 (Utah 1989). And we therefore affirm without 

reaching the merits of Pinder’s due process claims.

1. Procedural Bar

¶39 Because the State has invoked the procedural bar provisions of the PCRA, the burden to disprove the elements of procedural bar falls on Pinder. UTAH CODE § 78B-9-105(2). Thus, it falls 

10 See also Taylor v. State, 2012 UT 5, ¶ 26, 270 P.3d 471 (“[U]nder 

the PCRA . . . newly discovered evidence merits post-conviction 

relief only if the evidence would create a reasonable doubt as to 

the defendant’s guilt.” (internal quotation marks omitted)).

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on Pinder to show that his due process claims are not ones that

“could have been . . . raised at trial or on appeal.” Id. § 78B-9-

106(1)(c). 

¶40 Pinder claims that he could not have raised the Welch 

claim or the 911 tapes claim previously—at trial, in time for his 

new trial motion, on a motion to amend his new trial motion 

(once he became aware of Welch’s recantation and some problems 

with the tapes), or on his direct appeal. He advances two arguments in support of this assertion. First is the notion that the 

PCRA’s procedural bar has no application to post-verdict proceedings prior to an appeal. Pinder claims to find that limitation 

in the text of Utah Code section 78B-9-106(1)(c)—in the terms limiting the procedural bar to claims that could have been raised “at 

trial or on appeal.” Because a post-trial motion is not “at trial” in 

Pinder’s view, he contends that a claim that could have been asserted (if at all) only post-trial is not subject to the statutory procedural bar. 

¶41 This argument finds some plausible support in the terms of 

the statute. As Pinder indicates, we sometimes speak of a “trial” 

as a reference to the proceedings that begin with opening statements and end with a verdict. But that is not the only sense of this 

term. We 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. 

¶42 We base that conclusion on the statutory context of the 

phrase “at trial”—on the fact that this phrase appears in a statute 

foreclosing claims that could have been asserted at earlier stages, 

and in a clause contrasting “at trial” with proceedings “on appeal.” In this setting “at trial” cannot plausibly be understood to 

be limited to the proceeding beginning with opening statements 

and ending in a verdict. Such a construction would produce troubling loopholes in the PCRA’s procedural bar provision—

loopholes that would bar claims that could have been raised before

the verdict or during the appeal, but not before opening statements 

(pre-trial) or after the verdict (post-trial). We see no rational way 

to attribute to the legislature the intent to condone such loopholes. 

And we accordingly construe section 104(e)’s reference to “trial” 

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Opinion of the Court

to encompass all claims that could have been raised in the trial 

court.11

¶43 That brings us to Pinder’s second basis for avoiding the 

PCRA’s procedural bar—the argument that even if claims that 

could have been asserted at the post-trial stage are covered by 

statute, these claims are not barred because they came to light too 

late. In support of this argument, Pinder asserts that the evidence 

sustaining his due process claims came to light only after his new 

trial motion was filed, and after what he views as a limitation on 

amendments to new trial motions in the rules of criminal procedure. See UTAH R. CRIM. P. 24 (requiring new trial motion to be 

filed within 10 days of entry of sentence, without mentioning the 

possibility of an amendment). The parties devote substantial attention to this issue in their briefs, with Pinder relying on what he 

views as a negative inference from criminal rule 24, and the State 

asserting that civil rule 15 should be construed to apply in a criminal case (and to allow an amendment to a new trial motion). We 

need not and do not reach that question. We resolve the matter 

instead on the ground that Pinder’s due process claims could have 

been raised at trial, or at least by the time he filed his new trial 

motion.

¶44 Our cases establish that a defendant “could have” raised a 

claim when he or his counsel is aware of the essential factual basis 

for asserting it.12 And that conclusion holds even when the de11 See, e.g., State v. Barela, 2015 UT 22, ¶¶ 42–44, 349 P.3d 676

(choosing a construction of statutory text on grounds that the alternative would produce anomalies that cannot be attributed to 

the legislature).

12 See, e.g., Taylor, 2012 UT 5, ¶ 19 (finding procedural bar where 

the “facts underlying the[] claims arose” during earlier proceedings and were available to counsel for over twenty years); Gardner 

v. State, 2010 UT 46, ¶ 76, 234 P.3d 1115 (holding that due process 

claims “could have” been raised in a prior post-conviction proceeding and were thus procedurally barred because the petitioner

“became aware” of the factual basis for his claims during the first 

post-conviction proceeding); Gardner v. Galetka, 2004 UT 42, ¶¶ 9–

13, 94 P.3d 263 (holding that challenge to the knowledge element 

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fendant later discovers additional evidence providing further 

support for the claim.13 The exception to this general rule is set 

forth by statute: “Notwithstanding Subsection (1)(c), a person may 

be eligible for relief on a basis that the ground could have been 

but was not raised at trial or on appeal, if the failure to raise that 

ground was due to ineffective assistance of counsel.” UTAH CODE

§ 78B-9-106(3). Thus, the general rule is that the procedural bar 

applies to claims known to a defendant or his counsel; the exception kicks in when the failure to assert a known claim results from 

ineffective assistance of counsel. 

¶45 We find Pinder’s due process claims to be barred under 

these standards. The grounds for asserting claims regarding the 

Newly Welch testimony and the 911 tapes were known to Pinder 

at the time of trial, and accordingly “could have” been brought 

then or in his post-trial motion. At most Pinder has identified additional evidence supporting these claims, and that is insufficient 

to avoid the procedural bar under our cases.

a. Newly Welch testimony

¶46 Pinder asserts that Welch perjured himself at trial and that 

the State knowingly presented that perjured testimony. He bases 

this claim—as well as his attempt to justify his failure to assert it 

sooner—on an affidavit of Todd Gabler, an investigator hired by 

Pinder’s counsel. The Gabler affidavit asserts that on March 7, 

2002, Welch recanted the essence of his testimony at trial—

specifically, his assertion that Pinder had told Welch that he shot

of a jury instruction “could have” been brought on direct appeal 

or in a first post-conviction petition based merely on the “presence of the erroneous . . . instruction in the record”).

13 See Taylor, 2012 UT 5, ¶ 25 (although the petitioner discovered 

prosecutor’s voir dire notes during federal habeas investigation 

leading him to raise claim that a juror was struck based on religious affiliation, claim could have been raised on direct appeal

because trial counsel was present during voir dire “and knew that 

potential jurors were being questioned about their religious affiliation,” “knew which jurors the prosecution removed with peremptory challenges,” and should have been aware “that LDS 

members comprised approximately 78 percent of the jury pool”).

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PINDER v. STATE

Opinion of the Court

and beat Tanner and Flood.14 It also indicates that Welch told Gabler that he would not confess to his perjury at trial under oath 

until after his release from probation. 

¶47 In light of this evidence, Pinder contends that he could not 

have raised a constitutional claim based on Welch’s alleged perjury until after Welch got off probation. And because Welch’s probation did not end until after Pinder filed his new trial motion, 

Pinder asserts that his due process claim regarding the knowing 

presentation of perjured testimony could not have been presented 

during the post-trial proceedings on that motion. 

¶48 We disagree. Pinder’s claim does not hinge on the Gabler 

affidavit. That affidavit may have provided some additional evidence in support of the claim that Welch perjured himself, but the 

defense had plenty of grounds for this assertion at trial, or in a 

post-trial motion.15 And the affidavit says nothing about the key 

14 The State objects to the use of the Gabler affidavit as inadmissible hearsay, which cannot be used to establish a material issue of 

fact on summary judgment. That may be a winning argument. But 

it is one the State never raised below. It was accordingly forfeited. 

See, e.g., D & L Supply v. Saurini, 775 P.2d 420, 421 (Utah 1989) 

(holding that “[i]t is true that inadmissible evidence cannot be 

considered in ruling on a motion for summary judgment,” but rejecting an argument that summary judgment evidence contained 

hearsay because the party “failed to object at the trial court”); see 

also id. (collecting cases).

15 The grounds for a charge of perjury by Welch at the time of 

trial were extensive: (1) that a fellow inmate testified that Welch 

told him that Welch was getting out of jail soon because he was 

going to testify against a “guy” facing murder charges, that Welch 

said he was going to testify that the “guy” confessed to him, and 

that the fellow inmate asked him if the confession had really occurred, and Welch shook his head, “no”; (2) that Welch admitted 

on cross-examination that he had made false statements to police 

about what Pinder said and that he hoped his testimony would 

help him get out of prison early; (3) that Welch told police that 

Pinder admitted using a sawed-off shotgun to commit the murders, but a medical examiner testified that medium-caliber bullets 

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Opinion of the Court

element of the State’s knowledge of Welch’s alleged perjury at the 

time of trial—as there is no indication that the State was aware of 

the contents of the Gabler affidavit at the time it presented the 

Welch testimony at trial. 

¶49 We deem the Welch claim procedurally barred on this basis. The Gabler affidavit adds marginally to Pinder’s assertion of 

perjury by Welch, but it is hardly necessary to the allegation of 

perjury. And, significantly, the affidavit says nothing about the 

State’s knowledge of the alleged perjury. We therefore conclude 

that Pinder has failed to establish that the Welch claim is one not 

available at trial or at least on his post-trial motion. 

¶50 Pinder has not sought refuge in the statutory exception to 

procedural bar; he has not asserted that the Welch claim was not 

raised at trial “due to ineffective assistance of counsel.” UTAH 

CODE § 78B-9-106(3).16 And absent such an argument, we find the 

Welch claim procedurally barred given that the essential basis of 

the claim was available to Pinder at trial or at least at the time of 

his post-trial motion.

b. 911 tapes

¶51 Pinder’s second due process claim fails on similar grounds. 

This claim is rooted in the allegation that the State knowingly presented doctored 911 tapes to establish that the crime in question 

was committed on Sunday, October 25, 1998. According to the ev-

(not shotgun pellets) were the cause of death; (4) that Welch admitted that he had access to the television while in jail and that he 

had seen a broadcast about Pinder two months before meeting 

him; and (5) that correctional officers testified that Pinder “pretty 

much kept to himself, kept in his room,” making it unlikely that 

Pinder would confess to anyone, let alone “a manipulative inmate 

who always wanted attention and who lied to get what he needed.” 

16 Indeed, Pinder’s briefing on this appeal underscores the failure to allege ineffective assistance. Instead of establishing that he 

asserted such a claim, Pinder requests a remand to allow him to 

do so. There is no procedural mechanism for such a remand, 

however. And Pinder’s failure to raise this claim only reinforces 

the propriety of the district court’s decision below.

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PINDER v. STATE

Opinion of the Court

idence at trial, this was both the date of the murders and the date 

of the staged fight between Ruiz and Harris. Pinder claims that 

the State falsified the 911 tapes to change the true date of the fight 

(and hence the murders) from October 24, 1998, to October 25, 

1998. The tapes themselves were never entered into evidence. But 

Pinder asserts that they were used to “refresh” the memories of 

various witnesses, including Pinder himself, so that they would 

testify to the “baseline” date of October 25. And Pinder claims 

that the date mattered because he had an alibi (through DeHart) 

on October 24. 

¶52 On post-conviction review, Pinder presents the testimony 

of expert witnesses who analyzed the tapes from October 24 and 

25. Those experts concluded that the recordings were “not pristine,” and had in some unspecified way been “altered” and “tampered with by exporting and editing,” and thus could not “be 

deemed reliable.” 

¶53 Pinder offers no clear ground for his assertion that this 

claim could not have been presented at trial or on a post-trial motion. When asked at oral argument to identify what alerted the defense team to the possibility of a problem with the date, counsel 

simply stated that at some point they decided that “the only way

. . . [to] have a valid claim . . . was to see if there was an alteration 

of the tapes.” That does not support the conclusion that this claim 

could not have been pursued sooner. Pinder has not identified 

any factual grounds for this claim that were not available at trial 

but only came to light more recently. He has merely asserted that 

counsel decided only at the post-conviction phase to pursue the 

matter further. That is insufficient. The same basis for the investigation by post-conviction counsel was as readily available to trial 

counsel. And that is enough to sustain the conclusion that the 

claim “could have” been brought at trial.

¶54 Pinder had ample grounds for pursuing an investigation 

into the date of the staged fight and subsequent 911 recording at 

the time of the trial. DeHart had testified to one date (October 24)

in her obstruction of justice trial, but identified a different date

(October 25) at Pinder’s trial. And the difference in dates clearly 

mattered to Pinder at the time of trial—as he allegedly had an alibi for the former date but not the latter. Yet Pinder did not challenge the October 25 date at trial; nor did he pursue an investiga20
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Opinion of the Court

tion into the 911 tapes. He clearly could have done so then; he had 

every motivation and opportunity to do so at the time of trial or in 

anticipation of a post-trial motion.

¶55 This is accordingly a claim that “could have” been brought 

previously. Granted, the defense team did not have the results of 

the expert analysis during the trial and post-trial proceedings. But 

they had everything else, and the additional evidence provided by 

the expert’s nebulous conclusions17 is insufficient in this context to 

undermine the conclusion that this claim “could have” been 

brought earlier. As with the Welch claim, Pinder has not sought to 

avoid the procedural bar on the grounds spelled out in the 

PCRA—by asserting that the 911 tapes claim was not raised at trial “due to ineffective assistance of counsel.” UTAH CODE § 78B-9-

106(3). And absent such an argument, we find this claim procedurally barred given that the essential basis of the claim was 

available to Welch at trial or at least at the time of his post-trial 

motion.

2. Exceptions to Procedural Bar

¶56 Pinder also bears the burden of establishing the applicability of any exception to the procedural bar under Hurst v. Cook, 777 

P.2d 1029 (Utah 1989). Hurst established common law “exceptions” to the limitations of the PCRA. Those exceptions, in turn, 

were repudiated by the legislature in 2008, in a provision clarifying that the PCRA is the “sole remedy” for post-conviction relief. 

UTAH CODE § 78B-9-102(1); see also Taylor v. State, 2012 UT 5, ¶ 11 

n.3, 270 P.3d 471 (noting that Utah Code subsection 102(1) renders 

the Hurst exceptions inapplicable for all claims filed on or after

May 5, 2008). Thus, the Hurst exceptions are available only for 

claims filed before May 5, 2008. 

¶57 The Hurst exceptions are available to Pinder because his 

PCRA petition was filed on May 31, 2006. But Pinder has failed to 

carry his burden of establishing the applicability of any exception 

set forth in Hurst. His attempts to preserve the argument in the 

district court were minimal, and probably deficient, as he did little 

17 It is worth noting that Pinder’s experts have not asserted that 

the date was altered in the 911 tapes. They state only that the recordings on both days had been altered in some fashion.

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PINDER v. STATE

Opinion of the Court

more than cite Hurst—with a vague reminder that the court “retain[ed] the right to address the merits of the claims if good cause 

exists.” 

¶58 But even if the issue was preserved in the district court, 

Pinder failed to carry his burden on appeal. His opening brief 

made no mention of the threshold burden under Hurst—of establishing that the claims were “not withheld for tactical reasons.” 

Carter v. State, 2012 UT 69, ¶ 25, 289 P.3d 542 (internal quotation 

marks omitted)). That alone is a fatal misstep, as we typically do 

not consider issues raised for the first time in a reply brief. See Allen v. Friel, 2008 UT 56, ¶¶ 8, 16–18, 194 P.3d 903 (declining to address claim by PCRA petitioner raised for the first time in reply 

brief because such issues “are considered waived and will not be 

considered by the appellate court” (internal quotation marks 

omitted)).

¶59 Even assuming the viability of Pinder’s argument on reply, 

however, he still has failed to carry his burden under Hurst. The 

reply brief says only that his due process claims could not have 

been withheld for tactical reasons because “the factual bas[e]s for 

the claims were not known either at trial or on appeal.” That assertion fails on grounds set forth above. Because we have concluded that Pinder could have asserted his due process claims at 

trial (or on a post-trial motion), he has not carried his burden under Hurst.18

18 As an alternative basis for its ruling, the district court reached 

the merits of both due process claims. Pinder claims that this was 

error. He bases that argument on the assertion that the State never 

moved for summary judgment on the merits of those claims, limiting its motion to procedural bar. Pinder is right that the State did 

not move for summary judgment on the merits of the 911 tapes 

claim. But the State did move on the merits of the claim regarding 

the Welch testimony—a point made clear by the fact that Pinder 

responded to the State’s argument in his reply brief. It was accordingly error for the district court to reach the merits of Pinder’s 

911 tapes claim. But since we affirm on the basis of procedural 

bar, the error was harmless.

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C. Discovery and Motion to Amend

¶60 Pinder also challenges the district court’s (effective) denial 

of his motion for further discovery and the district court’s denial 

of the motion to amend without explanation. The district court 

never expressly ruled on Pinder’s motion for additional discovery. 

It effectively denied it by granting summary judgment in favor of 

the State. And though the district court did expressly rule on the 

motion to amend, it did so in a single line in its summary judgment order without articulating the basis for that decision. 

¶61 We affirm. A denial of a motion to amend usually requires 

explanation. But we may affirm such a decision where the reasons 

for denial are apparent on the face of the record. See Hudgens v. 

Prosper, Inc., 2010 UT 68, ¶ 19, 243 P.3d 1275. That is the case here.

Four years had passed between the time Pinder filed his petition 

in the district court and the filing of his motion to amend. The motion to amend, moreover, came a full year after the State filed its 

motion for summary judgment. Such eleventh-hour pleas to 

amend, filed on the eve of or during the pendency of a summary 

judgment motion, are often denied as untimely.19 Pinder had 

plenty of time to discover the facts purportedly meriting an 

amendment. The district court’s decision to deny Pinder’s motion—and instead to grant a summary judgment motion that had 

been pending for over a year—was not an abuse of discretion.

19 See, e.g., Roberts v. Ariz. Bd. of Regents, 661 F.2d 796, 798 (9th 

Cir. 1981) (no abuse of discretion when motion to amend “raised 

at the eleventh hour, after discovery was virtually complete” and 

a motion for summary judgment “was pending before the court”); 

Neztsosie v. Meyer, 883 P.2d 920, 922 (Utah 1994) (no abuse of discretion in denying motion to amend that came three years after 

filing of complaint, and a month after grant of summary judgment); Kelly v. Hard Money Funding, Inc., 2004 UT App 44, ¶¶ 29, 

30, 87 P.3d 734 (“[M]otions to amend are typically deemed untimely when they are filed in the advanced procedural stages of 

the litigation process . . . . [And] regardless of the procedural posture of the case, motions to amend have typically been deemed 

untimely when they were filed several years into the litigation.” 

(collecting cases)).

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Opinion of the Court

¶62 The district court also acted within its discretion in denying 

Pinder’s discovery motion. First, Pinder never properly submitted 

the motion for decision under Utah Rule of Civil Procedure 7. See 

UTAH R. CIV. P. 7(d) (“If no party files a request [to submit for decision], the motion will not be submitted for decision.”). Second, 

Pinder’s decision to seek additional discovery did not invoke rule 

56(f), as required, in seeking a continuance. See UTAH R. CIV. P.

56(f) (recognizing court’s discretion to deny motion for summary 

judgment if it “appear[s] from the affidavits of a party opposing 

the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party’s opposition”). And even 

if he had, the district court would have been within its discretion 

to deny such a motion as dilatory. As with the motion to amend, 

the motion for additional discovery came after years of litigation 

and after the filing (and one year pendency) of a dispositive motion for summary judgment. Thus, we see no abuse of discretion 

in the district court’s denial of Pinder’s motion for additional discovery.

——————

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