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Carter v. State

Supreme Court of Utah

March 21, 2019

Douglas Stewart Carter, Appellant,
State of Utah, Appellee.

          On Direct Appeal Fourth District, Utah County The Honorable Lynn W. Davis No. 150400825

          Loren E. Weiss, Salt Lake City; Jon M. Sands, Paula K. Harms, Eric Zuckerman, Phoenix, for appellant

          Andrew F. Peterson, Erin Riley, Daniel W. Boyer, Asst. Solics. Gen., Salt Lake City, for appellee

          Justice Himonas authored the opinion of the Court in which Justice Pearce, Justice Petersen, Judge Mortensen, and Judge Pohlman joined.

          Having recused themselves, Chief Justice Durrant and Associate Chief Justice Lee did not participate herein. Court of Appeals Judge David N. Mortensen and Court of Appeals Judge Jill M. Pohlman sat.


          Himonas, Justice


         ¶1 For over three decades Douglas Carter has been on death row for the brutal murder of Eva Olesen. A jury convicted Carter in 1985 of murdering Ms. Olesen based in no small measure on the testimony of Epifanio and Lucia Tovar. Shortly after the Tovars testified against Carter at the guilt phase of his trial, they vanished. A separate jury sentenced Carter to death based, again, in no small measure on the Tovars' prior trial testimony, which had to be read to the jury in light of the Tovars' absence.

         ¶2 Through a coincidence, Carter's current counsel located the Tovars in 2011. After interviewing them, counsel obtained their sworn declarations. In these declarations the Tovars assert under "penalty of perjury" that (1) they were threatened by police with deportation, the removal of their son, and prison if they did not cooperate in the case against Carter, (2) they felt pressured to make untrue statements, and (3) they were explicitly instructed to lie under oath about substantial financial benefits provided to them by the police and previously undisclosed to defense counsel.

         ¶3 With these damning revelations in hand, Carter's counsel filed a petition for post-conviction relief, which the State responded to with a motion for summary judgment. Despite finding the existence of genuine disputes of material fact regarding whether the police or prosecution "threatened . . . the Tovars," "coached the Tovars' testimony," and suborned perjury by telling Mr. Tovar "to lie about benefits he received from the State," the district court summarily dismissed Carter's petition on the grounds that, as a matter of undisputed fact and law, Carter was not prejudiced by this conduct at either the guilt or sentencing phases of his trial.

         ¶4 Because the district court erred in this determination, we reverse and remand for an evidentiary hearing consistent with this opinion.


         Murder of Eva Olesen

         ¶5 On February 27, 1985, Orla Olesen found his wife, Eva, murdered in their Provo, Utah home. Ms. Olesen's hands were tied behind her back, her clothes had been removed from the waist down, and her sanitary pad had been removed and was lying at her feet. She had been stabbed eight times in the back, once in the abdomen, and once in the neck. She had also suffered a fatal gunshot wound to the back of her head.

         ¶6 A specialist from the Bureau of Alcohol, Tobacco, and Firearms determined that the markings on the slug removed from her body were consistent with those produced by a .38 special handgun. The gun used to kill Ms. Olesen was never located. The knife used to inflict the stab wounds was recovered at the scene and determined to have come from the Olesens' kitchen. Detectives also recovered nineteen fingerprints and a blonde pubic hair from the scene. None of the physical evidence linked Carter to the scene of the crime.

         Initial Investigation of Carter

         ¶7 On March 14, 1985, Provo Police brought Carter in for questioning on the basis of two independent tips. First, an eyewitness had identified Carter as a possible suspect in a separate case-a vehicle trespass that had occurred an hour or two prior to the murder in the same general area. Second, police had received information that Anne Carter-Carter's wife at the time, but who was contemporaneously seeking a divorce from Carter-had told someone that she rushed home after learning of the murder to see if Carter had been involved. During questioning, Carter admitted that he knew Ms. Olesen-who had purchased health care products from Anne in the past-but denied involvement in the murder. Carter was fingerprinted and released.

         ¶8 On March 20, 1985, police brought Carter in for a second round of questioning regarding the murder. Police told Carter that they had brought him in for further questioning because of some discrepancies between his and Anne's statements. Carter maintained his truthfulness and gave police permission to take hair samples to compare with those found at the scene. At the time of this second interview, Carter was one of about eight suspects in the murder.

         Anne Carter's Statement to Police

         ¶9 On April 8, 1985, Ms. Carter approached Deputy Utah County Attorney Sterling Sainsbury, who she knew through her position as a clerk for the juvenile court, and told him that she thought Carter had been involved in the murder. Ms. Carter suspected that her missing handgun, a .38 special, was the murder weapon and she was afraid that she would be implicated as an accessory to the crime. Mr. Sainsbury informed her that he was obligated to report her story to the Utah County Attorney's Office and he recommended that she obtain legal counsel and come forth with the information voluntarily. Mr. Sainsbury then sought out the prosecutor assigned to the murder, Utah County Deputy Attorney Wayne Watson, and relayed Ms. Carter's statements to him.

         ¶10 Ms. Carter sought advice from Robert Orehoski, who was representing her in her divorce action against Carter. Mr. Orehoski, who coincidentally happened to be Mr. Watson's private law partner, recommended that she seek a conditional grant of immunity in exchange for her information. Ms. Carter decided to give a statement to police and agreed to a search of her home, during which police recovered several articles of bloodstained clothing[2] and .38 caliber ammunition.

         ¶11 In her statement to police, Ms. Carter reported that Carter had gone to visit his friend, Epifanio Tovar, on the night of the murder. While at Mr. Tovar's house, Carter also met two of Mr. Tovar's friends. One of these friends held a grudge against Provo Police Chief Swen Nielsen, who was Ms. Olesen's nephew. Carter and the two friends decided to go to the Olesens' house and steal Ms. Olesen's gold necklace. Carter waited in the car while the other two men knocked on the door and entered the house. Carter was unaware of what happened in the house until the two men returned to the car and told him that Ms. Olesen was dead.

         Perla Bermudez Interview

         ¶12 Based on the information provided by Ms. Carter, police next interviewed Perla LaCayo Bermudez on April 10, 1985.[3] Ms. Bermudez was friends with Carter and Mr. Tovar and had seen both of them in the days prior to her interview. Ms. Bermudez told police that Carter had been acting strange in the month prior and that he had told her that he was a suspect in Ms. Olesen's murder. Carter said he planned to leave for Chicago and gave Ms. Bermudez a portable whirlpool used to heat up water as a parting gift. When she tried to use the whirlpool, it began smoking; she opened the whirlpool to reveal a gun wrapped in some kind of rag or t-shirt. Carter later returned to retrieve the whirlpool. A few days later, Ms. Bermudez and Mr. Tovar drove Carter just across state lines to Wendover, Nevada to catch a bus to Chicago.

         ¶13 When asked whether Mr. Tovar knew that Carter was a suspect in the murder, Ms. Bermudez initially responded that she did not think Mr. Tovar knew anything. However, Ms. Bermudez later changed course and offered that Mr. Tovar told her that Carter had confessed to him about the murder.[4] Mr. Tovar told her that Carter had gone to Ms. Olesen's house and forced his way inside. Ms. Olesen grabbed a knife from the kitchen, but then dropped it when Carter told her to let go of it. Carter instructed Ms. Olesen to lie down on the floor, where he pulled her pants down. Carter then stabbed Ms. Olesen in the back and shot her through a pillow.

         ¶14 Mr. Tovar told Ms. Bermudez that he was afraid of Carter and what Carter might do to his family. Mr. Tovar also told her that he was not sure if he believed Carter because Carter lied a lot.

         Epifanio Tovar's Police Interview

         ¶15 As a result of the interview with Ms. Bermudez, police felt they had probable cause to take Mr. Tovar into custody for obstruction of justice. Mr. Tovar was taken into custody on April 12, 1985.[5] That same day, Provo Police Lieutenant George Pierpont conducted an interview with Mr. Tovar, who eventually provided a similar version of the story that Ms. Bermudez had told.[6]

         ¶16 Mr. Tovar initially denied any knowledge of the murder. When Mr. Tovar denied knowledge, Lieutenant Pierpont asked, "Are we going to tell each other the truth today?" Lieutenant Pierpont later added, "I want the truth. And if you do not tell me the truth-don't get yourself buried my friend." Mr. Tovar continued to deny knowledge of the murder and told Lieutenant Pierpont that he was afraid something might happen to him. Lieutenant Pierpont responded that if Mr. Tovar talked to him, he would be able to tell Mr. Tovar whether anything was going to "come down on" Mr. Tovar, but told Mr. Tovar, "I know what's already happened, I need to hear that from you," and "you've got to tell me what's happened in this thing, and you know." Mr. Tovar replied, "Okay, okay. [Carter] told me that he homicide a lady."

         ¶17 According to Mr. Tovar, Carter was at Mr. Tovar's house on the night of the murder and left around 7:30 pm to "go and try to steal some money." Carter returned to Mr. Tovar's house a couple hours later and appeared visibly shaken. Carter told Mr. Tovar that he had killed Ms. Olesen. Carter had gone to the Olesens' house and knocked on the door. When Ms. Olesen answered the door, Carter felt that the look she gave him showed that she viewed him with prejudice because he was Black. Carter became angry, pointed a gun at Ms. Olesen, and told her to get inside the house. Ms. Olesen grabbed a kitchen knife, but she dropped the knife at Carter's direction and laid down on the floor. Carter then proceeded to repeatedly stab Ms. Olesen in the back with the knife. Ms. Olesen was still alive after Carter stabbed her repeatedly, so he grabbed a pillow to muffle the sound and shot Ms. Olesen in the back of the head. Carter took nothing from the home and took care to leave behind no fingerprints.

         ¶18 The following day, Mr. Tovar watched the news and read the paper, which confirmed Ms. Olesen's murder. In doing so, Mr. Tovar read that Ms. Olesen had been raped. When Mr. Tovar saw Carter again, Mr. Tovar asked him if he had raped Ms. Olesen. According to Mr. Tovar, Carter replied that he did not rape Ms. Olesen and that he pulled her pants down but she was "on the rag." Carter also told Mr. Tovar that he might dispose of the gun by throwing it in a lake, but Mr. Tovar denied knowledge of the actual whereabouts of the gun.

         ¶19 Mr. Tovar also disclosed that he had helped drive Carter to Wendover to catch a bus out of the state, although he was uncertain exactly where Carter was headed.

         Carter's Arrest and Confession

         ¶20 A warrant was issued for Carter's arrest and the State filed an information charging Carter with capital murder. Carter was eventually located on June 11, 1985, in Nashville, Tennessee, where he was arrested and taken into custody. Carter was interrogated that day by Officer William Cunningham of the Nashville Police Department. Carter was questioned for about four hours on June 11 and four more hours on June 12. During the interview, Carter was "inquisitive" and "asked numerous times" what had happened to JoAnn Robins, a woman he had befriended and whose home he was in at the time of his arrest. Officer Cunningham informed Carter that she had been arrested and charged as an accessory after the fact for harboring a fugitive. Over the course of the two-day interrogation, Carter repeatedly insisted that Ms. Robins knew nothing about the murder of Ms. Olesen. Carter made no incriminating statements to Officer Cunningham.

         ¶21 The following day, Lieutenant Pierpont arrived in Nashville and took over the interrogation. Within about thirty minutes, Lieutenant Pierpont was able to extract a confession in which Carter admitted to entering the Olesens' home, stabbing Ms. Olesen, and shooting her in the back of the head. The confession also states that Carter went around the house looking for things to steal. Notably, Carter's confession does not mention anything about removing Ms. Olesen's clothes.

         ¶22 Carter's counsel filed a motion to suppress the confession, contending that his confession was coerced. Carter claimed to have seen Ms. Robins in the jail while he was being held there. Carter also claimed that Officer Cunningham promised to help Ms. Robins if Carter would help him. According to Carter, Officer Cunningham repeated this promise every time that Carter asked about Ms. Robins. Counsel also raised concerns regarding the procedure by which his confession was obtained. The confession was dictated by Lieutenant Pierpont to a tape recorder[7] and a secretary later typed up what Lieutenant Pierpont had dictated.[8] Lieutenant Pierpont would pause intermittently to ask Carter whether what he was saying was accurate. After the statement was typed up, Carter reviewed the statement and signed it.[9] The trial court rejected the motion to suppress and this court later affirmed, noting that Carter's "own detailed statements to [the Tovars] immediately after the crime parallel and substantially support the confession given to the police." State v. Carter, 776 P.2d 886, 890 (Utah 1989) (emphasis added).

         Preliminary Hearing Testimony

         ¶23 On June 25, 1985, the court held a preliminary hearing at which Mr. Tovar and his spouse, Lucia Tovar, among others, testified.

         ¶24 Mr. Tovar gave testimony similar to the statement he gave to police on April 12, 1985. Mr. Tovar recounted Carter telling Mr. Tovar that he was going to go out and break into a car or steal some money, but when he returned he admitted to killing Ms. Olesen. Mr. Tovar also recalled Carter telling Mr. Tovar in a subsequent conversation that he did not rape Ms. Olesen. Mr. Tovar did offer some information that was absent from his April 12 statement. Specifically, Mr. Tovar testified that Carter demonstrated the act of the murder by lying on the ground and showing Mr. Tovar how he stabbed Ms. Olesen.

         ¶25 Ms. Tovar also testified at the preliminary hearing. Speaking through a translator, Ms. Tovar testified that she observed the conversation between Carter and her husband on the night of February 27. She stated that she understood very little of the conversation that took place, but she observed Carter's physical demonstration. Carter demonstrated lying down with his hands behind his back and then signaled that he was shooting someone.

         1985 Trial Testimony

         ¶26 At trial, the State again called Mr. and Ms. Tovar to testify. Mr. Tovar provided testimony similar to the testimony he gave during his initial police interview and at the preliminary hearing with two noteworthy exceptions. First, Mr. Tovar testified that Carter told Mr. Tovar that he intended to "rape, break, and drive" when he left the Tovars' home around 7:30 pm on February 27. Second, Mr. Tovar testified that he had disposed of Ms. Carter's gun in a nearby river at Carter's request. Mr. Tovar apparently disclosed this information to police one week before the trial and acknowledged on cross-examination that he had lied in his earlier statements when he denied knowledge of the gun's whereabouts. On cross-examination, Mr. Tovar also testified that he and his family had not received any support from the prosecutor's office or the Provo Police between February and trial besides the fourteen-dollar witness fees he and his wife received.

         ¶27 Ms. Tovar, again speaking through an interpreter, presented a more detailed version of the events she testified to at the preliminary hearing. She testified that Carter showed her and her husband exactly how he had forced Ms. Olesen to lie down, that he put his hands behind his back to illustrate how he had tied Ms. Olesen's hands, and that he demonstrated what can be best described as a stabbing motion. She also testified that Carter "laughed and laughed" about something he had done. She said that Carter was "laughing and giggling" while on the ground demonstrating what he had done. On cross-examination, Ms. Tovar downplayed the possibility that Carter had been laughing at a television show playing in the Tovars' living room because what he was demonstrating and what he was laughing about seemed to have no relation to the television.

         ¶28 The jury found Carter guilty of first-degree murder and sentenced him to death the following day. Carter appealed his conviction and sentence. We vacated his death sentence and remanded for a new penalty proceeding because of an instructional error at the original sentencing. State v. Carter, 776 P.2d 886, 896 (Utah 1989).

         1992 Resentencing Testimony

         ¶29 Before Carter's resentencing, the Tovars disappeared. The State maintained that the Tovars were unavailable to testify at resentencing because they had fled the country. Accordingly, the State proposed to introduce an abstract that contained all testimony by either party at the original guilt and sentencing phases- including the Tovars' testimony. The resentencing court denied Carter's motion to exclude the abstract and portions of the Tovars' testimony were read to the jury at resentencing. Among the portions read to the jury was Mr. Tovar's testimony stating that Carter intended to "rape, break, and drive" and Ms. Tovar's testimony that Carter "laugh[ed] and giggl[ed]" while demonstrating how he had killed Ms. Olesen. The State repeated these statements in its closing argument to demonstrate why it felt the death penalty was appropriate in this case. The jury sentenced Carter to death.

         The Tovars Resurface

         ¶30 In 2011, Carter's counsel caught word that the Tovars' son had been arrested in Arizona; he agreed to speak with Carter's counsel. Through these conversations, Carter's counsel was able to locate the Tovars. The Tovars executed declarations describing their treatment by Provo Police in the months leading up to Carter's trial.

         ¶31 Mr. Tovar declared that he felt pressured "before, during and after" his interrogation and that he was told things "would go badly" for him if he did not cooperate. He claims that he feared for the welfare and safety of his family due to police threats that included deportation and removing the Tovars' infant son from their custody. He also declared that the police twice moved his family to a different apartment and paid the Tovars' rent, which was somewhere in the neighborhood of $400 per month. The police also paid Mr. Tovar's phone and utility bills and would deliver groceries to the Tovars. Once trial concluded, these payments stopped. Mr. Tovar states that the police told him and his wife not to say anything at trial about the payments for rent and other living expenses if asked about benefits received from the police.

         ¶32 Ms. Tovar declared that she was not focused on the conversation that took place between Carter and her husband on the night of the murder and that her testimony at trial was sourced from what her husband had told her after the interaction. She also echoed Mr. Tovar's claims that the police moved them to new apartments and paid the Tovars' rent and utility bills, and that police instructed them not to acknowledge this arrangement if asked at trial. Additionally, the police would send the Tovars gifts such as food baskets or toys for their son, and on Christmas Day the police came caroling at the Tovars' apartment and delivered a Christmas tree. Furthermore, both of the Tovars assert that the prosecutor spoke with them before trial and told them what he wanted them to say in their testimony, and the Tovars felt they had no choice but to comply in light of the threats of deportation and separation.

         ¶33 The Tovars' claims of financial support are at least partially corroborated in two declarations from former members of the Provo Police Department who worked on the Olesen case. Officer Richard Mack declared that it was his responsibility to keep the Tovars happy and that he recalls bringing them groceries, Christmas gifts, and toys for their son. While Officer Mack does not recall giving the Tovars money for rent, he could not definitively say that he did not give them money for rent at some point. Officer Mack also noted that the police did make cash payments to witnesses in certain cases such as narcotics cases. Officer Stan Eggen also declared that, although he was not privy to the specifics of what was done for the Tovars, he does remember that the department assisted the Tovars once they were identified as witnesses.

         Wayne Watson Deposition

         ¶34 Wayne Watson, the prosecutor in the original trial, was deposed in this case. When asked if it was possible that benefits were given to witnesses but not recorded in the State's file, Mr. Watson volunteered that he believed Provo City gave the Tovars "rent for a month or two." Mr. Watson claims that he learned this information from Lieutenant Pierpont but could not remember if he learned this information before or after trial. However, Mr. Watson subsequently stated that Carter's trial counsel was informed about the benefits allegedly supplied to the Tovars. When pressed on why he did not correct the Tovars' testimony that they received only the fourteen-dollar witness fee, Mr. Watson answered that he must not have known the exact amount of the benefits the Tovars received and that he would have assumed Carter's counsel was going to bring up the other benefits later on.

         District Court Proceedings

         ¶35 Carter's federal court habeas proceedings were stayed so he could return to the Utah state courts to exhaust his claims regarding the Tovars. See Carter v. Crowther, No. 2:02-CV-326 TS, 2016 WL 843273, at *3 (D. Utah Mar. 1, 2016). Carter raises three grounds in his petition for post-conviction relief. First, Carter argues that prosecutors suppressed or failed to disclose material impeachment information regarding the treatment of the Tovars in violation of Brady v. Maryland, 373 U.S. 83 (1963). Second, Carter argues that Mr. Watson failed to correct the false testimony of Mr. Tovar in violation of Napue v. Illinois, 360 U.S. 264 (1959). And third, Carter argues that the prosecution improperly vouched for the Tovars at trial. The State moved for and the district court granted summary judgment on all three claims.

         ¶36 With respect to the first claim, the district court held that prosecutors failed to disclose material impeachment information but that the failure to disclose was not material for purposes of Brady and Utah's Post-Conviction Remedies Act (PCRA). With respect to the second claim, the district court held that any alleged prosecutorial misconduct was not material for purposes of the PCRA. Finally, with respect to the third claim, the district court held that it was procedurally barred because the basis for a claim of improper vouching was known at the time of trial and existed completely independent of defense counsel's knowledge of the treatment of the Tovars. Carter appeals the district court's grant of summary judgment.

         ¶37 Carter also appeals a number of evidentiary rulings made by the district court in connection with its consideration of his petition for post-conviction relief.

         ¶38 We have jurisdiction pursuant to Utah Code section 78A-3-102(3)(i).


         ¶39 "Summary judgment is only appropriate if the moving party shows that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law." Arnold v. Grigsby, 2018 UT 14, ¶ 8, 417 P.3d 606 (citation omitted) (internal quotation marks omitted). "We review the district court's grant or denial of summary judgment for correctness, drawing all reasonable inferences from the facts in the light most favorable to the nonmoving party." Truck Ins. Exch. v. Rutherford, 2017 UT 25, ¶ 5, 395 P.3d 143.

         ¶40 "With regard to the admission of evidence, most decisions involve a threshold statement of the legal principle governing admission or exclusion, findings of facts pertinent to a determination, and the application of the legal principle to the facts at hand with regard to admissibility." Arnold, 2018 UT 14, ¶ 9. "We review the legal questions to make the determination of admissibility for correctness. We review the questions of fact for clear error. Finally, we review the [trial] court's ruling on admissibility for abuse of discretion." Id. (alteration in original) (citation omitted) (internal quotation marks omitted).


         ¶41 Carter presents a number of arguments on appeal. First, Carter argues that the district court erred in granting summary judgment in favor of the State with regard to his Brady and Napue claims. Second, Carter argues that the district court improperly dismissed his improper vouching claim as procedurally barred. And finally, Carter disputes a number of evidentiary rulings made by the district court.

         ¶42 We agree with Carter that the district court erred in granting summary judgment in favor of the State with regard to his Brady and Napue claims. Instead we hold that Carter has demonstrated that a genuine dispute of material fact exists as to whether he was prejudiced by both the Brady and Napue material. We therefore reverse and remand for an evidentiary hearing on these claims.

         ¶43 We disagree with Carter with regard to his improper vouching claim and hold that the district court correctly determined that it was procedurally barred. We also affirm the district court's numerous evidentiary rulings.

         ¶44 We begin our discussion of Carter's claims with an overview of the operative provisions of the PCRA. We then turn to his Brady and Napue claims, addressing each one in turn. Next, we address his improper vouching claim. And finally, we address the evidentiary rulings made by the district court and disputed by Carter on appeal.


         ¶45 The PCRA establishes the sole statutory "remedy for any person who challenges a conviction or sentence for a criminal offense and who has exhausted all other legal remedies . . . ." Utah Code § 78B-9-102(1)(a). A person challenging a conviction or sentence under the PCRA may file a post-conviction petition requesting that the court modify or vacate the conviction or sentence on the ground that "the conviction was obtained or the sentence was imposed in violation of the United States Constitution or Utah Constitution." Id. § 78B-9-104(1)(a). The court may grant relief from a conviction or sentence only if "the petitioner establishes that there would be a reasonable likelihood of a more favorable outcome in light of the facts proved in the post-conviction proceeding." Id. § 78B-9-104(2). In other words, a court may grant post-conviction relief if a petitioner demonstrates that his or her conviction or sentence was obtained in violation of the United States Constitution or Utah Constitution and there is a reasonable likelihood that he or she would have obtained a more favorable outcome had that constitutional violation not occurred.

         ¶46 Carter alleges that his conviction was obtained and his sentence was imposed in the face of two constitutional violations. First, Carter asserts that the prosecution failed to disclose material impeachment information regarding the treatment of the Tovars in violation of Brady v. Maryland, 373 U.S. 83 (1963). Second, Carter asserts that the prosecution failed to correct the false testimony of Mr. Tovar with respect to financial benefits received by the Tovars in violation of Napue v. Illinois, 360 U.S. 264 (1959).

         ¶47 The district court held that Carter's Brady and Napue claims did not qualify for relief under the PCRA because neither claim established a reasonable likelihood that Carter would have obtained a more favorable outcome had the violations not occurred. We disagree with the district court and hold that a genuine dispute of material fact exists as to whether Carter's Brady and Napue claims establish a reasonable likelihood ...

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