Direct Appeal Fourth District, Utah County The Honorable Lynn
W. Davis No. 150400825
E. Weiss, Salt Lake City; Jon M. Sands, Paula K. Harms, Eric
Zuckerman, Phoenix, for appellant
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
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.
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.
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
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.
Because the district court erred in this determination, we
reverse and remand for an evidentiary hearing consistent with
of Eva Olesen
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.
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
Investigation of Carter
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.
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.
Carter's Statement to Police
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.
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 and .38 caliber ammunition.
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.
Based on the information provided by Ms. Carter, police next
interviewed Perla LaCayo Bermudez on April 10,
1985. 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.
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. 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.
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.
Tovar's Police Interview
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. 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.
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."
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
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.
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.
Arrest and Confession
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.
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
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 and a secretary
later typed up what Lieutenant Pierpont had
dictated. 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. 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).
On June 25, 1985, the court held a preliminary hearing at
which Mr. Tovar and his spouse, Lucia Tovar, among others,
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.
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.
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.
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.
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).
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
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.
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.
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.
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, 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.
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.
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.
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.
We have jurisdiction pursuant to Utah Code section
"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.
"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).
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
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
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.
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
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.
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.
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 ...