Carter v. State

This opinion is subject to revision before final
publication in the Pacific Reporter
2019 UT 12IN THE
SUPREME COURT OF THE STATE OF UTAH
DOUGLAS STEWART CARTER,
Appellant,
v.
STATE OF UTAH,
Appellee.
No. 20170641
Filed March 21, 2019
On Direct Appeal
Fourth District, Utah County
The Honorable Lynn W. Davis
No. 150400825
Attorneys:
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.
JUSTICE HIMONAS, opinion of the Court:
INTRODUCTION
¶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
CARTER v. STATE
Opinion of the Court
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.
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BACKGROUND 1
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.
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1 When reviewing a grant of summary judgment we recite all
facts in favor of the nonmoving party—in this case, Carter. See, e.g.,
Poteet v. White, 2006 UT 63, ¶ 7, 147 P.3d 439. We also draw all
reasonable inferences in favor of the nonmoving party. Id.We also wish to bring to the reader’s attention a stylistic choice
regarding how statements and testimony are recounted in this
section. When describing statements and testimony in this section,
we have opted to forego prefacing every statement or piece of
testimony with something akin to “according to this witness” or
“this witness said.” Instead, we provide such a preface at the
beginning of that witness’s testimony and often proceed to describe
the remainder of the testimony without any such preface.
By way of example, in recounting Anne Carter’s statement to
police in paragraph 11, we state:
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.
The second and third sentences are not to be read as a declaratory
statement of fact made by this court. Instead, those sentences simply
reflect what Ms. Carter said in her police interview.
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Opinion of the Court
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
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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
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2 Because we believe it important to our prejudice analysis, we
reiterate that no physical evidence linked Carter to the crime scene.
For example, the record reflects that the blood on the clothing
recovered during the search of the home was not Ms. Olesen’s.
3 There are some significant concerns with this interview that
must be noted. First, the transcript begins with the interviewer,
Officer Richard Mack, telling Ms. Bermudez, “I know that you
already told me all of [this], but we need to repeat[] it for the
recorder. Okay?” This makes clear that the information contained in
the transcript is not from the initial interview with Ms. Bermudez,
but instead recounts what took place in that initial interview.
Second, it appears that the interview takes place over several
days, but it is unclear from the transcript where one interview ends
and another begins. While the transcripts of the interview are
marked as being recorded on April 10, 1985, it seems obvious from
the record that the interview did not occur entirely on April 10, 1985.
At several points, the record demonstrates that Ms. Bermudez was
brought in for multiple interviews. A supplementary report states
that Officer Mack was “requested to reinterview [Ms. Bermudez] to
see if any more information could be determined as to the
whereabouts of [Carter].” This is corroborated by another
supplementary report from Officer Mack on April 12, 1985, that
begins: “Today I again made contact with [Ms. Bermudez].” It is also
worth noting that the discussion between tapes is not continuous
(continued . . .)
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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.
and features significant gaps in the conversation, which make it
difficult to demarcate where the different interviews begin and end.
The transcript also suggests that Ms. Bermudez spoke to Mr.
Tovar between interviews and told him that the police may ask more
questions of both her and Mr. Tovar. She told Mr. Tovar that “if they
ask—ask me again—I even told him, Epifanio, I said, if they come
here, I said, say the truth instead.” Because of these inconsistencies, it
is difficult to establish a clear timeline with respect to the interactions
between the police and Ms. Bermudez and between Ms. Bermudez
and Mr. Tovar.
4 This portion of the transcript probably comes from one of the
interviews that were taken after the initial interview with Officer
Mack, as this statement indicates a clear reversal from her prior
statement that Mr. Tovar did not know anything. A supplementary
report dated April 12, 1985, suggests this is the case, as Officer Mack
noted “I told [Ms. Bermudez] that she had to know more about [Mr.]
Tovar’s involvement in this entire situation. She admitted that she
did.”
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¶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
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5 According to his testimony at trial, Mr. Tovar was held in
custody for four days. The timeline is not entirely clear from the
record, but it appears that Mr. Tovar was first interviewed and then
held in jail for four days.
6 It appears from the transcript that this was not the first time
Lieutenant Pierpont and Mr. Tovar had talked to each other. At the
beginning of the interview, Lieutenant Pierpont tells Mr. Tovar, “The
reason you’re here is because of a friend of yours. . . . I’m sure you
saw me the other day up there, and I saw you and we talked for a
minute.” It is unclear exactly what encounter Lieutenant Pierpont is
referring to, but it is clear that there was a previous encounter—
however brief it may have been.
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Opinion of the Court
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
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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.
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7 The tape was never brought to Utah from Tennessee and was
apparently destroyed at some point between the dictation of the
confession and Carter’s trial.
8 The typist listed on the confession, Julie Hoffman, has stated
that this confession does not appear to her to have been taken and
dictated in the usual manner of that time period. Ms. Hoffman
declares that she would usually type a suspect’s words as the
suspect was interviewed, and that the interview would be recorded
on a tape, which was kept as evidence.
9 Carter testified that while his signature appears on the
confession presented at the preliminary hearing, it was a different
document than the one he signed in Nashville.
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Opinion of the Court
¶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
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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.
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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
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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).
STANDARD OF REVIEW
¶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
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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).
ANALYSIS
¶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.
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I. PCRA OVERVIEW
¶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 that Carter would have obtained a
more favorable outcome had the violations not occurred. We now
address these claims in turn.
II. CARTER’S BRADY CLAIMS
¶48 The United States Supreme Court has held that “the
suppression by the prosecution of evidence favorable to an accused
. . . violates due process where the evidence is material either to guilt
or to punishment, irrespective of the good faith or bad faith of the
prosecution.” Brady v. Maryland, 373 U.S. 83, 87 (1963). The duty to
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Opinion of the Court
disclose favorable evidence extends to both exculpatory and
impeachment evidence, United States v. Bagley, 473 U.S. 667, 676
(1985), and exists regardless of whether the accused has requested
the evidence, United States v. Agurs, 427 U.S. 97, 107 (1976).
Furthermore, the prosecutor “has a duty to learn of any favorable
evidence known to the others acting on the government’s behalf in
the case, including the police.” Kyles v. Whitley, 514 U.S. 419, 437
(1995).
¶49 The Court has identified three necessary components to
establish a Brady violation: (1) “[t]he evidence at issue must be
favorable to the accused;” (2) “that evidence must have been
suppressed by the State, either willfully or inadvertently;” and
(3) “prejudice must have ensued.” Strickler v. Greene, 527 U.S. 263,
281–82 (1999).
¶50 To demonstrate prejudice under Brady, the accused must
show that the suppressed, favorable evidence is material. Tillman v.
State, 2005 UT 56, ¶ 29, 128 P.3d 1123. Such evidence is material only
if “there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have
been different.” Bagley, 473 U.S. at 682. In deciding whether evidence
is material for purposes of Brady, there are three principles that
deserve “special emphasis.” Tillman, 2005 UT 56, ¶ 30.
¶51 First, “a showing of materiality does not require
demonstration by a preponderance that disclosure of the suppressed
evidence would have resulted ultimately in the defendant’s
acquittal.” Kyles, 514 U.S. at 434. Instead, to determine whether a
“reasonable probability” of a different result exists, the relevant
inquiry is whether the accused “received a fair trial, understood as a
trial resulting in a verdict worthy of confidence” in the absence of
disclosure of the evidence. Id. In other words, “[a] ‘reasonable
probability’ of a different result is . . . shown when the government’s
evidentiary suppression ‘undermines confidence in the outcome of
the trial.’” Id. (quoting Bagley, 473 U.S. at 678).
¶52 Second, “materiality . . . is not a sufficiency of evidence
test.” Id. The accused does not have to discount the inculpatory
evidence presented at trial by the value of the undisclosed evidence
and then demonstrate that there would not have been enough
evidence left to convict. Id. at 434–35. Rather, the accused only needs
to show that “the favorable evidence could reasonably be taken to
put the whole case in such a different light as to undermine
confidence in the verdict.” Id. at 435.
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¶53 And third, “materiality . . . must be evaluated in the
context of the entire record.” Tillman, 2005 UT 56, ¶ 32. While courts
may “evaluate the tendency and force of the undisclosed evidence
item by item,” it is the collective weight of the evidence that is
considered when evaluating materiality. Kyles, 514 U.S. at 436 & n.10.
¶54 Carter presents three pieces of suppressed evidence that
he claims amount to a Brady violation: (1) evidence of financial
benefits provided to the Tovars; (2) evidence that the prosecutor
“coached” the Tovars’ testimony; and (3) evidence that the police
threatened the Tovars and ordered them to lie about the financial
benefits they received. The district court found that there was a
genuine issue of material fact with respect to whether these three
pieces of evidence are favorable. The district court also found that
there was a genuine dispute of material fact with respect to whether
the police or prosecution had suppressed this evidence. After finding
those disputed issues of fact, the district court concluded that the
evidence was not material for purposes of Brady. Carter and the State
do not argue in their briefs that the district court’s findings with
respect to favorability and suppression were in error. Instead,
Carter’s and the State’s briefs focus on the question of whether the
evidence was prejudicial—i.e. material—for purposes of Brady.
¶55 We conclude that a genuine dispute of material fact exists
as to whether the evidence was prejudicial under Brady. And
because the materiality standard under Brady is the same materiality
standard contained in the PCRA, we conclude that a genuine dispute
of material fact exists as to whether Carter has demonstrated
prejudice remediable by the PCRA by way of a Brady violation.
A. Financial Benefits
¶56 Carter’s first piece of evidence is that the Provo Police
Department provided the Tovars with various financial benefits. As
noted above, see supra ¶¶ 31–32, the Tovars now declare that police
moved the family to different apartments and paid the family’s rent
while the Tovars waited to testify at trial. The Tovars also declare
that police provided other, smaller financial benefits such as paying
utility bills and buying groceries.
¶57 Carter argues that the financial benefits provided to the
Tovars demonstrate that the Tovars’ testimony was “bought and
paid for by police.” He claims that this evidence undermines the
Tovars’ testimony as a whole and that, because of the importance of
the Tovars’ testimony to the State’s case, the evidence undermines
the confidence in Carter’s verdict and sentence.
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CARTER v. STATE
Opinion of the Court
¶58 The district court rejected the argument that the receipt of
financial benefits undermines the confidence in the verdict and
sentence. While it acknowledged that this is “certainly impeachment
evidence,” it concluded that the materiality of the evidence was
“minimal.” To support its conclusion, the district court noted that it
believed the Tovars’ testimony at trial was consistent with
statements they made prior to the time that the alleged financial
assistance was provided. Additionally, the district court held that
any inference that the Tovars gave altered or untruthful testimony as
a result of the benefits they received was speculative. Furthermore,
the district court said that the prosecution could have rebutted any
claims of financial benefits in exchange for changed testimony by
presenting evidence that the payments were made for the Tovars’
protection because they feared Carter. In the district court’s
estimation then, “this evidence had as great of a capacity to prejudice
[Carter] as it did to impeach the Tovars’ credibility, if not greater.”
¶59 Carter rejects the district court’s characterization of the
Tovars’ testimony as consistent. In support, Carter points to a
number of inconsistencies in the Tovars’ testimony over time.
¶60 First, Carter points to Mr. Tovar’s inconsistent versions of
what Carter told Mr. Tovar he was going to do when he left the
Tovars’ home on the night of the murder. While Mr. Tovar initially
told police that Carter had said that he was going to “try to steal
some money,” when it came time to testify at trial Mr. Tovar told the
jury that Carter said he was “going to rape, break, and drive.” Carter
notes that this inconsistency was especially harmful to Carter at
resentencing because the prosecution emphasized this testimony to
demonstrate aggravating circumstances under which the murder
took place.
¶61 Second, Carter points to Mr. Tovar’s contradictory
statements regarding the gun used in the murder. Although
Mr. Tovar initially denied any knowledge of the gun’s whereabouts,
he eventually testified at trial that he had disposed of the gun at
Carter’s request. In Carter’s estimation, this altered story resolved an
important unanswered question in the State’s case at the last minute.
¶62 And third, Carter points to Ms. Tovar’s inconsistent
versions of what Carter did when he returned to the Tovars’ home
and told them what had happened. When Ms. Tovar was
interviewed by police, she told police that Carter was talking and
laughing to Mr. Tovar about something that she could not
understand. And at the preliminary hearing, Ms. Tovar made no
mention of Carter laughing. But at trial Ms. Tovar told the jury that
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Carter “laughed and laughed” about something he had done and
that he was “laughing and giggling” while demonstrating the
murder for Mr. Tovar. Additionally, Ms. Tovar’s testimony with
respect to any demonstration by Carter also changed over time.
While Ms. Tovar told police in her initial interview that Carter “put
his hands behind his back with the back of his wrists touching
together,” she testified at the preliminary hearing that Carter
signaled that he was shooting someone and later testified at trial that
Carter demonstrated how he had forced someone to lay on the
ground and how he subsequently stabbed that person.
¶63 In essence, Carter argues that the inconsistencies in the
Tovars’ testimony create a reasonable inference that the Tovars
changed their testimony in response to the financial benefits
provided by police and this undermines confidence in the verdict
and sentence. 10
¶64 The State responds that Carter raises no material
inconsistency with respect to the Tovars’ testimony. 11
_____________________________________________________________
10 Carter also challenges the district court’s finding that the State
could have rebutted claims of materiality by demonstrating that the
financial benefits were provided for the Tovars’ protection.
Specifically, Carter asserts that the district court could not rely on
evidence outside of the record in determining materiality and that,
even if the district court could consider extra-record evidence, the
evidence the district court considered would be nonetheless
inadmissible under the Utah Rules of Evidence. Because we
conclude that a genuine issue of material fact exists with respect to
materiality even in light of the extra-record evidence that the district
court considered, we need not and do not reach these arguments.
11 The State also responds that Carter did not preserve the
inconsistency argument below. We disagree. Carter raised the issue
of inconsistent testimony in his briefing in the district court when he
explained that Mr. Tovar’s testimony regarding Carter’s intent and
state of mind “varie[d] considerably” between the preliminary
hearing and trial and that this “demonstrates one significant way in
which [Mr. Tovar’s] testimony appears to have been coached.” To
the extent that Carter points out inconsistencies he did not raise in
his motion opposing summary judgment, these arguments are a
direct reaction to the district court’s heavy reliance on its perceived
consistency of the Tovars’ various statements over time to hold that
no prejudice ensued in this case.
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CARTER v. STATE
Opinion of the Court
¶65 First, the State argues that any inconsistencies in
Mr. Tovar’s testimony were a result of his fear of retaliation by
Carter. In the State’s view, Mr. Tovar’s inconsistent statements were
simply a manifestation of his reluctance to divulge information
because he feared retaliation by Carter or Carter’s family. In this
sense, the State’s argument is not that Mr. Tovar’s statements were
inconsistent, but rather that any inconsistency was not a result of any
financial benefits that the Tovars received.
¶66 Second, the State argues that Ms. Tovar’s statements were
not inconsistent. The State frames any inconsistencies in Ms. Tovar’s
statements as “minor discrepancies” and “simply additional color
that witnesses usually add at trial.” The State also asserts that any
inconsistencies between the initial police report and Ms. Tovar’s
testimony at the preliminary hearing and trial can be attributed to
the fact that police reports are not word-for-word transcriptions.
¶67 We disagree with the State and the district court that the
Tovars’ testimony was fundamentally consistent, especially in the
context of summary judgment where all inferences must be made in
favor of the non-moving party, Carter. Not only can it be easily
inferred from the face of the record that their testimony evolved over
time, but their testimony evolved in ways that were damaging to
Carter’s case, especially with respect to his sentencing. Mr. Tovar’s
testimony regarding the murder weapon, which was never
recovered, helped the prosecution close the loop with respect to one
of the most important unanswered factual questions in the case. And
the Tovars’ testimony regarding Carter’s state of mind gave the State
the evidence it needed to argue aggravating circumstances to the
jury and push for the death penalty.
¶68 We also disagree with the State’s assertion that any change
in Mr. Tovar’s testimony was driven solely by a fear of Carter.12 On
summary judgment we are to “draw[] all reasonable inferences from
_____________________________________________________________
12 The State also argues, rather curiously, that it could have
presented prior inconsistent statements Mr. Tovar made to Ms.
Bermudez to demonstrate that the Tovars were in fact fearful of
Carter. While this may be true, the ultimate effect of such a strategy
seems to cut against the State. By providing prior inconsistent
statements, the State would be impeaching its own key witnesses.
And we are skeptical that impeaching the Tovars with prior
inconsistent statements would be more harmful than helpful to
Carter.
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the facts in the light most favorable to the nonmoving party.” Truck
Ins. Exch. v. Rutherford, 2017 UT 25, ¶ 5, 395 P.3d 143. Given all of the
allegations—financial benefits, testimony coaching, and police
threats—in the Tovars’ declarations, we believe it is reasonable to
draw the inference that the Tovars’ inconsistent statements were
driven at least in part by the financial benefits they allege to have
received.
¶69 We leave for later analysis whether, when considered in
tandem with the other Brady material presented by Carter, this
evidence undermines confidence in the verdict and sentence.
B. Improper Testimony Coaching
¶70 Carter’s second piece of evidence is that the prosecution
coached the Tovars’ testimony. The Tovars declare that the
prosecutor met with them before trial and told them what he wanted
them to say when they testified.
¶71 The district court concluded that Carter did not provide
any specific evidence of what the prosecutor told the Tovars to say
and therefore any inference that the Tovars’ testimony would have
been more favorable to Carter without the alleged coaching is
speculative. The district court also found that the Tovars’ testimony
was consistent and reliable, and that “[b]ecause of the consistency of
the Tovars’ testimonies, the fact that the Tovars met with the
prosecutor before trial is unlikely to have changed the jury’s view of
the evidence.” For these reasons, the district court held that Carter
had not alleged facts sufficient to show that any prejudice ensued.
¶72 Carter again argues that the Tovars’ testimony was
inconsistent. For this reason, Carter claims that the district court’s
materiality analysis was flawed.
¶73 The State again responds that Carter fails to show any
material inconsistency in the Tovars’ testimony.
¶74 We agree with the district court that the Tovars’
declarations do not allege the prosecutor asked them to alter their
testimony in any substantive way. Standing alone, this claim is likely
insufficient to create a material dispute of fact regarding materiality.
But we do not view this claim in isolation, we view it along with
Carter’s other claims of misconduct and evidence suppression. See
Kyles, 514 U.S. at 436 (“The . . . final aspect of . . . materiality to be
stressed here is its definition in terms of suppressed evidence
considered collectively . . . .”). Furthermore, for the reasons outlined
in section II.A, we agree with Carter that, when drawing the
inferences in Carter’s favor, the Tovars’ testimony is inconsistent in
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CARTER v. STATE
Opinion of the Court
meaningful ways. In the same way that it is reasonable to infer that
the Tovars’ testimony changed over time in response to financial
benefits received, it is likewise reasonable to infer that the Tovars’
testimony changed over time, at least in part, in response to
testimony coaching by the prosecutor. When considered alongside
the financial benefits and the threats of deportation and separation,
the inferences drawn in favor of Carter from the accusations of
testimony coaching become more than mere speculation.
¶75 The line between a reasonable inference and speculation
can be difficult to draw, “[b]ut a reasonable inference exists when
‘there is at least a foundation in the evidence upon which the
ultimate conclusion is based,’ while ‘in the case of speculation, there
is no underlying evidence to support the conclusion.’” Heslop v. Bear
River Mut. Ins. Co., 2017 UT 5, ¶ 22, 390 P.3d 314 (citations omitted).
In this case, Carter has laid a foundation upon which the ultimate
conclusion of changed testimony in response to prosecutor and
police coaching could be based. The fact that the Tovars’ testimony is
inconsistent over time, coupled with the allegations of financial
benefits and police threats, provides us with enough foundation to
infer that the Tovars’ testimony changed in response to testimony
coaching. Although it would undoubtedly be helpful to his case for
Carter to identify specific instances of testimony coaching, we are
able to draw these inferences in Carter’s favor for purposes of
summary judgment.
¶76 We again leave for later analysis whether, when
considered in tandem with the other Brady material presented by
Carter, this evidence undermines confidence in the verdict and
sentence.
C. Police Threats and Orders to Lie
¶77 Carter’s third piece of evidence is that police threatened
the Tovars and ordered the Tovars to lie about the receipt of
financial benefits if asked about them at trial. Mr. Tovar declares that
police instructed the Tovars not to say anything about the receipt of
financial benefits because “it was such a minimal amount.”
Ms. Tovar echoes this sentiment, declaring that officials told them
not to say anything at trial if asked about the police paying for their
rent, utilities, and groceries. The Tovars declare that police
threatened Mr. Tovar with deportation, removal of the Tovars’ infant
son from the family, and potential prison time if they did not
cooperate.
¶78 The district court held that this evidence would not have
made a material difference with respect to impeaching either the
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Tovars or the police who allegedly threatened the Tovars. The
district court held it was not material with respect to the Tovars
because the Tovars’ testimony was consistent throughout and the
Tovars did not allege specific ways in which their testimony changed
as a result of these threats. 13 The district court also concluded that
this evidence would not cast the trial in a different light because
defense counsel already had access to Lieutenant Pierpont’s
interrogation of Mr. Tovar in which he told Mr. Tovar, “Don’t get
yourself buried, my friend” and “If you start lying to me, I can’t do
anything but come down on you.” Additionally, trial counsel was
aware that Mr. Tovar had originally been charged with obstruction
of justice and was therefore facing incarceration and possibly
removal of his infant son. Furthermore, Carter’s trial counsel
presented evidence to the jury that the Tovars were in the country
illegally and may have been afraid of deportation. The district court
reasoned that the threats described in the Tovars’ declarations are
similar enough to other threats known to trial counsel. 14
¶79 With respect to impeaching police testimony, the district
court held that the Tovars had not identified which police officers
threatened them and therefore the district court was unable to
determine the value of the impeachment evidence, if any. The
district court also found that there was not a sufficient factual basis
to support a reasonable inference that Mr. Tovar was threatened
before his interrogation. The district court acknowledged that
Lieutenant Pierpont made a reference to speaking with Mr. Tovar
prior to his interrogation but ultimately concluded that it could not
_____________________________________________________________
13 The district court held that this evidence would not be material
with respect to impeaching the Tovars “[f]or the same reasons
articulated above.” It is not entirely clear what this ambiguous
reference to “the same reasons articulated above” means, but the
most natural import seems to be that the district court was referring
to the Tovars’ supposedly consistent testimony and the lack of
specific allegations of how the Tovars’ testimony would have been
different but for the threats and orders to lie.
14 Without explicitly saying so, it seems that the district court
found this evidence to be merely cumulative of other evidence
presented at trial. In other words, the district court found that this
evidence provided no impeachment or exculpatory information
beyond what Carter’s counsel already knew at trial. This court has
held that cumulative evidence is “not material for purposes of
Brady.” Tillman, 2005 UT 56, ¶¶ 37–38, 41.
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CARTER v. STATE
Opinion of the Court
“reasonably infer that [Lieutenant Pierpont] threatened Mr. Tovar on
this occasion.”
¶80 Carter argues that any threats known to trial counsel pale
in comparison to the Tovars’ declaration that they were instructed to
lie on the stand and that this alone is valuable impeachment
evidence. Additionally, Carter asserts that he is not required to
identify specific officers, but that the clear implication is that the
officers involved were Lieutenant Pierpont and Officer Mack.
¶81 Carter also argues that he has provided a sufficient factual
basis to support a reasonable inference that Mr. Tovar felt threatened
before his interrogation. Specifically, Carter asserts that Lieutenant
Pierpont’s statement that he spoke with Mr. Tovar prior to the
investigation combined with Mr. Tovar’s declaration that he felt
threatened by police before his interrogation meets Carter’s burden
to show that there is a genuine dispute of material fact as to whether
Mr. Tovar was threatened before his interrogation.
¶82 The State responds that Carter has proffered no evidence
of a nexus between the alleged threats and the Tovars’ testimony.
The State argues that Mr. Tovar’s “vague assertion” that he felt
pressured before his interrogation is insufficient to show that this
feeling came from any police threats. In the State’s view, Carter has
not provided specific facts that could lead to the inference that
threats by police led the Tovars to falsely incriminate Carter.
¶83 We find that a reasonable inference can be drawn that
Mr. Tovar was threatened by police before his interview and that the
Tovars were instructed to lie on the stand, at least with respect to the
receipt of benefits. We agree with Carter that Mr. Tovar’s declaration
that he felt pressured before his interrogation coupled with the fact
that Mr. Tovar had an undisclosed conversation with Lieutenant
Pierpont before his interrogation is sufficient to draw a reasonable
inference that Mr. Tovar was threated before his interrogation. While
it is unknown what was said or what happened during that first
conversation, the fact that the conversation took place creates “a
foundation in the evidence upon which the ultimate conclusion is
based.” Heslop, 2017 UT 5, ¶ 22 (citation omitted) (internal quotation
marks omitted).
¶84 We also find that the threats alleged in Mr. Tovar’s
declaration are different enough from the threats known to trial
counsel as to render the new threats non-cumulative. While trial
counsel was assuredly aware of the threats contained in the
transcript of Mr. Tovar’s interrogation, and potentially aware of any
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threats of prison time or deportation related to Mr. Tovar’s
obstruction of justice charge, trial counsel was not on notice of any
threats linked to false testimony. That is, the threats Mr. Tovar now
alleges were threats levied to induce false testimony on behalf of the
Tovars. According to Mr. Tovar, he felt that “if [he] had testified that
[the police] had paid for the rent and phone, etc., that [the police]
would have carried out their threats and would have arrested us,
deported us and taken our infant son away from us.” Because the
threats described in the Tovars’ declarations are inextricably linked
to police orders to lie about the receipt of financial benefits, this
evidence is non-cumulative of evidence presented at trial.
¶85 We now turn to our analysis of whether all the evidence
and the reasonable inferences therefrom could have the cumulative
effect of undermining confidence in the verdict.
D. Cumulative Effect of the Evidence
¶86 As noted above, the State has not challenged the district
court’s finding that there is a genuine issue of material fact as to
whether the first two prongs—suppression and favorability—of
Carter’s Brady claim have been satisfied. We therefore must only
determine whether summary judgment was appropriate for the State
on the issue of materiality. We conclude that a genuine issue of
material fact exists as to whether Carter was prejudiced by the
suppression of the evidence with respect to both the guilt and
sentencing phases. We therefore reverse the district court and
remand for an evidentiary hearing on this issue.
¶87 In order to determine whether suppression of the evidence
could have prejudiced Carter, we must decide whether the evidence
was material. Tillman, 2005 UT 56, ¶ 29. Evidence is material if “there
is a reasonable probability that, had the evidence been disclosed to
the defense, the result of the proceeding would have been different.”
Bagley, 473 U.S. at 682. “[A] showing of materiality does not require
demonstration by a preponderance that disclosure of the suppressed
evidence would have resulted ultimately in the defendant’s
acquittal.” Kyles, 514 U.S. at 434. Instead, to determine whether a
“reasonable probability” of a different result exists, the relevant
inquiry is whether the accused “received a fair trial, understood as a
trial resulting in a verdict worthy of confidence” in the absence of
the undisclosed evidence. Id. In other words, “[a] ‘reasonable
probability’ of a different result is . . . shown when the government’s
evidentiary suppression ‘undermines confidence in the outcome of
the trial.’” Id. (quoting Bagley, 473 U.S. at 678). When making this
determination, “the reviewing court may consider directly any
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CARTER v. STATE
Opinion of the Court
adverse effect that the prosecutor’s failure to [disclose Brady
material] might have had on the preparation or presentation of the
defendant’s case.” Bagley, 473 U.S. at 683.
¶88 Therefore, we must determine if there is a genuine dispute
of material fact as to whether the absence of the following evidence,
when considered collectively, undermines confidence in Carter’s
verdict and sentence: (1) the financial benefits received by the
Tovars; (2) the testimony coaching received by the Tovars; and (3)
police threats and orders directed at the Tovars.
¶89 The district court held that no such dispute of material fact
existed. It held that “even assuming the allegations in the [Tovars’]
declarations are true and credible, the evidence does not cast the case
in such a different light ‘as to undermine confidence in the verdict or
sentence.’” This conclusion was based on a number of findings. It
found that the combined effect of the content in the Tovars’
declarations did not undermine the Tovars’ credibility as witnesses
because the Tovars had already been impeached at trial in a variety
of ways. It also found that Carter’s confession was “extremely
incriminating” and therefore trial counsel would have had every
motivation to challenge the confession, regardless of the evidence in
the Tovars’ declarations. Additionally, the district court reiterated its
finding that Carter did not produce sufficient evidence to show that
he could have challenged the veracity of law enforcement officer
testimony because the Tovars’ declarations do not identify specific
officers. Finally, the district court dismissed Carter’s argument that
the Tovars’ declarations could have been used to exclude their
testimony during resentencing and noted that, even if the testimony
was allowed during resentencing, the State could have presented
evidence of prior inconsistent statements from Mr. Tovar to
demonstrate that all payments were made for purposes of witness
protection.
¶90 On appeal, Carter argues that the district court erred in
determining that the evidence, as a matter of fact and law, does not
undermine confidence in the verdict and sentence. We agree.
¶91 As this court recognized when Carter appealed the result
of his resentencing hearing, the Tovars were “the State’s key
witnesses.” State v. Carter, 888 P.2d 629, 645 (Utah 1995). Their
testimony was important in a number of ways. “For example, the
Tovars’ testimony corroborated Carter’s confession by placing him
in the Olesens’ home on the night of the murder and provided
persuasive evidence that he committed the homicide.” Id. The
importance of the Tovars’ testimony was only magnified by the
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complete lack of physical evidence linking Carter to the scene of the
crime and the circumstances under which Carter’s confession was
obtained.
¶92 The prosecution also heavily relied upon the Tovars’
testimony at resentencing to demonstrate aggravating circumstances.
The prosecution made a number of references to the Tovars’
testimony in explaining to the resentencing jury why the State was
pushing for the death penalty. When asking the jury to “[c]onsider
the intent of [Carter],” the prosecutor told them “he wanted to ‘rape,
break and drive.’ He wanted to hurt someone. He wanted to get
something for himself. He went in there intending to do violence.
And then he exposed and brutalized the woman.” The prosecutor
also asked the jury to consider how Carter felt while he committed
the murder, noting that, “Perhaps the best evidence of that is . . . at
the Tovars’ home as he over and over again demonstrated to them
what he had done. [Carter was] excited, was laughing, was giggling
. . . .” Then adding, “He wasn’t sickened, he wasn’t saddened, he
wasn’t even frightened. He was thrilled. He was, he tortured that
woman, and that was a heinous killing.” The prosecutor opined that
Carter’s attitude “before, after and during the crime . . . exhibit[ed] a
callous disregard for human life, an excitement and a blood lust.”
And in closing, the prosecutor asked the jury, “Is the death penalty
right, is it appropriate? [To answer] that you have to consider this
defendant. A man who delighted in killing. A man who was thrilled
about the gore.”
¶93 It is clear then that the Tovars’ testimony was crucial at
both the guilt and sentencing phases of Carter’s trial. At the guilt
phase, the Tovars’ testimony provided corroboration for Carter’s
otherwise largely uncorroborated confession. Mr. Tovar’s last-
minute testimony about the disposal of the murder weapon also
helped the State close the loop on one of the case’s biggest
unanswered questions. And at the sentencing phase, the Tovars
provided the jury with damning insight into Carter’s mind both
before and after the murder took place. The importance of the
Tovars’ testimony is critical to our materiality analysis under Brady.
Any evidence challenging the Tovars’ testimony carries special
weight given the importance of their testimony to Carter’s conviction
and death sentence.
1. Guilt Phase
¶94 The evidence contained in the Tovars’ declarations creates
a genuine dispute of material fact as to whether confidence in the
verdict is undermined. If just one juror had concluded that Carter
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CARTER v. STATE
Opinion of the Court
was not guilty, then he would have been acquitted. The verdict in
any criminal case “shall be unanimous.” UTAH CODE § 77-35-21(b)
(1985).
¶95 While Carter’s confession is itself very incriminating, this
court has acknowledged that the Tovars were “the State’s key
witnesses” that “corroborated Carter’s confession” and “provided
persuasive evidence that he committed the homicide.” Carter, 888
P.2d at 645. Implicit in that acknowledgment is the notion that
Carter’s confession may not have been able to stand completely on
its own. 15 This notion is no doubt a byproduct—or at least a partial
byproduct—of the lack of physical evidence linking Carter to the
murder. The State needed something more to corroborate Carter’s
testimony, and it found that corroboration in the Tovars. And while
the Tovars were impeached at trial, we cannot say as a matter of law
and fact that the evidence contained in their declarations does not
undermine confidence in the verdict.
¶96 The district court acknowledged that “a witness’s
credibility may reach a ‘tipping point’ due to sheer volume of
impeachment evidence.” But the district court ultimately discarded
such a concern noting that, “in the court’s view, because of the
consistency of the Tovars’ statements incriminating [Carter], the
additional impeachment evidence proffered in this case does not
push the [Tovars’] credibility beyond that point.” On summary
judgment, our view diverges from that of the district court.
Although the Tovars’ testimony remains relatively consistent with
respect to whether Carter admitted to committing the murder, the
corroborative value of the Tovars’ testimony is nonetheless called
into question by the evidence in their declarations.
¶97 First, Mr. Tovar declares that he felt threatened before his
interrogation. This statement lessens the ability of the court to rely
on any consistency in the Tovars’ testimony. Even if the Tovars’
testimony was entirely consistent, the value of that testimony
becomes diminished once tainted by accusations of police threats
before any testimony is given. The jury was never able to evaluate
how strongly the Tovars’ testimony corroborated Carter’s confession
_____________________________________________________________
15 It is worth noting again that the validity of Carter’s confession
itself is not at issue in this case. What is at issue, however, is the
veracity of certain evidence that corroborated and supported
Carter’s confession.
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when viewed against the backdrop of police threats and accusations
of testimony coaching.
¶98 Second, as has been discussed at length above, the Tovars’
testimony is not consistent—even with respect to facts primarily
relevant to guilt. For example, Mr. Tovar changed his testimony with
respect to the whereabouts of the murder weapon. While Mr. Tovar
was cross-examined and admitted on the stand to previously lying
regarding the whereabouts of the gun, the jury was not presented
with financial benefits, police threats, and testimony coaching as
possible motives for the change of heart. That is, the jury was left to
evaluate Mr. Tovar’s credibility in that moment in a vacuum. With
the evidence in the declarations, a jury would be able to judge
Mr. Tovar’s credibility in light of the benefits, threats, and coaching.
¶99 Accordingly, we disagree with the district court’s
assessment that the consistency in the Tovars’ statements prevents
the Tovars’ credibility from reaching a tipping point as a matter of
law. Instead, we view the Tovars’ testimony, as we must under the
summary judgment standard, as inconsistent at times and tainted as
a whole by the evidence contained in the Tovars’ declarations. For
these reasons, we hold that there exists a genuine dispute of material
fact as to whether the outcome of the trial would have been different
but for the absence of the evidence. 16
2. Sentencing Phase
¶100 The evidence contained in the Tovars’ declarations also
creates a genuine dispute of material fact whether confidence in the
sentence is undermined. In fact, we find this conclusion much easier
to reach in the context of sentencing. The reason for this is simple: to
whatever extent the State can point to consistency in the Tovars’
testimony to rebut materiality with respect to guilt, that ability to
rebut materiality with consistency is significantly weaker with
respect to sentencing.
¶101 While the Tovars’ testimony may have been relatively
consistent with respect to facts that corroborate Carter’s confession,
the Tovars’ testimony is not consistent with respect to facts relevant
_____________________________________________________________
16 We also acknowledge the district court’s concerns about the
specificity of some of the allegations in the Tovars’ declarations.
Because the lack of specificity of certain claims does not affect our
determination that a genuine dispute of material fact exists, we
simply submit that these concerns should be allayed through an
evidentiary hearing.
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CARTER v. STATE
Opinion of the Court
to sentencing. As discussed above, the Tovars provided damning
testimony regarding Carter’s state of mind both before and after the
murder. See supra ¶¶ 26–27. At resentencing, the State repeatedly
drew from this testimony to paint Carter as someone who entered
the Olesens’ home with a premeditated intent to rape and left
without the slightest feeling of guilt or remorse. Crucially, these facts
were not presented until trial, which, according to the Tovars’
declarations, did not take place until months of financial benefits,
testimony coaching, police threats and orders to lie on the stand had
passed.
¶102 With respect to sentencing, this case is perhaps most
similar to Tillman, a case in which we overturned a death sentence
when defense counsel uncovered interview transcripts that
significantly undermined the testimony of the State’s key witness. In
Tillman, a lack of forensic evidence linking Mr. Tillman to the crime
left the State in a situation in which the testimony of Mr. Tillman’s
girlfriend, Carla Sagers, became “unquestionably the most critical
evidence . . . presented at trial.” 2005 UT 56, ¶ 4. Ms. Sagers initially
confirmed the alibi that Mr. Tillman gave to police. Id. However, she
later recanted her testimony in exchange for full immunity. Id.According to Ms. Sagers, she witnessed Mr. Tillman bludgeon the
sleeping victim in the head with an axe twice and then set the
victim’s bed on fire while the victim was still alive. Id. At trial and
sentencing, the State used Ms. Sagers’s testimony to paint
Mr. Tillman as “a man who repeatedly manipulated and took
advantage of innocent women, with Sagers merely serving as his
latest victim.” Id. ¶ 85. This was a “critical component” of the State’s
argument for imposition of the death penalty, an argument that
“depended heavily on the prosecution’s ability to diminish . . . any
moral culpability on the part of Sagers.” Id. ¶ 84.
¶103 The interview transcripts in Tillman contained a number of
revelations for defense counsel. First, the transcripts revealed that
Ms. Sagers “experienced a marked improvement in her ability to
confidently recall the sequence of events surrounding [the] murder.”
Id. ¶ 87. Second, the transcripts contained passages that suggested
that the detective investigating the case was “coaching Sagers to
enable her to supply a more believable narrative.” Id. Third, the
transcripts contained notations of laughter at various points in the
interview. Id. ¶ 69. The district court in Tillman found that some
notations referred simply to “nervous laughter” while others
appeared to demonstrate inappropriate levity, such as when
discussing “the violent death of a human being and [Sagers’s]
involvement in that death.” Id. (alteration in original) (internal
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quotation marks omitted). And finally, the transcripts contained
express statements that Tillman was depressed and suicidal prior to
the commission of the murder. Id. ¶ 90.
¶104 This court held that the suppressed transcripts constituted
a Brady violation and reversed Mr. Tillman’s death sentence, sending
the case back down for a new sentencing proceeding. Id. ¶ 94. We
noted that Mr. Tillman could have utilized the transcripts to portray
Ms. Sagers’s testimony as “a work in progress, carefully honed by
the prosecution over the course of many months, and which only
took its final shape mere days before trial.” Id. ¶ 87. Mr. Tillman also
could have advanced the argument that Ms. Sagers’s testimony “was
motivated by a desire to please the people who had granted her
complete immunity.” Id. The transcripts also would have been useful
to directly confront the State’s portrayal of Ms. Sagers as just another
one of Mr. Tillman’s victims. Id. ¶ 88. We noted that an “increased
moral culpability on the part of Sagers would throw into even
harsher relief the disproportionate treatment of Tillman when
compared with the treatment of Sagers.” Id. Finally, we found that
information about Tillman’s depression and suicidal thoughts may
have affected sentencing deliberations. Id. ¶ 90.
¶105 Many of the concerns that motivated our decision in
Tillman are present in this case. As in Tillman, no physical evidence
links Carter to the crime scene. As such, the Tovars’ testimony was a
critical component of the State’s case—especially with respect to
sentencing. 17 Like in Tillman, the Tovars’ declarations contain
allegations of testimony coaching in the face of police threats and
financial assistance. Accordingly, Carter has a colorable claim that
the Tovars’ testimony evolved over time to become more damaging
to Carter in an attempt to please the people who had provided them
with rent money and threatened them with deportation and
separation if they did not cooperate.
_____________________________________________________________
17 One obvious difference between this case and Tillman is that
Carter proffered a confession in which he admits to committing the
crime. However, nothing in the signed confession mentions a
premeditated intent to rape or suggests any lack of remorse after
committing the murder. In this sense, then, the Tovars’ testimony
was the only direct evidence of Carter’s intent and state of mind—
two issues that were crucial to the State’s argument for imposition of
the death penalty at resentencing.
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CARTER v. STATE
Opinion of the Court
¶106 As we noted in Tillman, “all that [i]s necessary . . . to avoid
the death penalty [i]s a single doubting juror.” Id. ¶ 92. If Carter had
been able to impeach the Tovars with the information contained in
their declarations the outcome may well have been very different.
Instead of having to rely only on impeachment information such as
Mr. Tovar’s criminal record, the jury would have heard that the
Tovars were threatened by police, had received significant financial
benefits from the police, had been told by the police to lie about
these benefits if asked at trial, and had received testimony coaching
from the prosecution. This would have assigned a strong motive to
the Tovars to change their testimony in a way that would make it
more likely that Carter received the death penalty. Not only that, but
the strong motive would have been directly linked to the very
parties prosecuting Carter. We may not be certain that disclosure of
the evidence contained in the Tovars’ declarations would have
resulted in a different sentence, but giving every inference to Carter
in the context of summary judgment, we are compelled to conclude
that a significant possibility exists that the outcome would have been
different. That possibility may undermine confidence in the sentence
and therefore may constitute prejudice under Brady and the PCRA
after an evidentiary hearing is held in this case.
III. CARTER’S NAPUE CLAIM
¶107 It has long been established that “deliberate deception of a
court and jurors by the presentation of known false evidence is
incompatible with ‘rudimentary demands of justice.’” Giglio v. United
States, 405 U.S. 150, 153 (1972) (quoting Mooney v. Holohan, 294 U.S.
103, 112 (1935)). In Napue v. Illinois, the United States Supreme Court
announced that “[t]he same result obtains when the State, although
not soliciting false evidence, allows it to go uncorrected when it
appears.” 360 U.S. 264, 269 (1959). Accordingly, “[a] new trial is
required if ‘the [uncorrected] false testimony could . . . in any
reasonable likelihood have affected the judgment of the jury.’”
Giglio, 405 U.S. at 154 (quoting Napue, 360 U.S. at 271).
¶108 Carter asserts one Napue violation: the prosecutor at trial,
Mr. Watson, failed to correct the testimony of Mr. Tovar regarding
the financial benefits that the Tovars received from police prior to
trial. When asked if he had received any benefits in connection with
his testimony, Mr. Tovar responded that he had only received his
fourteen-dollar witness fee. The Tovars now declare that police
provided them with numerous financial benefits including paying
for rent, groceries, and utilities. This declaration is at least partially
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corroborated by the deposition of Mr. Watson and the declarations
of Officer Mack and Officer Eggen. See supra ¶¶ 33–34.
¶109 The district court held that there was a genuine dispute of
material fact regarding whether Mr. Watson knowingly failed to
correct Mr. Tovar’s testimony. The district court also acknowledged
that the standard for relief in the Napue context—that the
uncorrected testimony could have affected the judgment of the jury—
is lower than the standard for relief in the Brady context—that the
suppressed evidence would have affected the judgment of the jury.
However, without ruling on whether Carter had presented a viable
Napue claim, the district court concluded that the failure to correct
false testimony in this case did not satisfy the PCRA’s materiality
standard because Carter did not establish that “there would be a
reasonable likelihood of a more favorable outcome in light of the
facts proved in the post-conviction proceeding.” UTAH CODE § 78B-9-
104(2).
¶110 The district court based this conclusion on its finding that
“evidence of financial assistance had as great of a potential to
prejudice [Carter] as it did to help him” because “the reasons why
the financial assistance was provided would have suggested to the
jury that [Carter] is a dangerous person.” Additionally, the district
court found that evidence of financial benefits would be unlikely to
cause the jury to disregard the Tovars’ testimony or lessen their
credibility. This was because the district court believed that
Mr. Tovar was thoroughly impeached by other evidence and that the
substance of his testimony remained consistent from before financial
benefits were paid up until trial.
¶111 On appeal, Carter argues that the district court erred in
assessing Carter’s claim under the more stringent PCRA materiality
standard. In the alternative, Carter argues that his Napue claim
demonstrates prejudice even under the PCRA’s standard.
Specifically, Carter asserts that the district court’s conclusion that
Mr. Tovar’s testimony was consistent is factually inaccurate and that
any attempt by the State to impeach the Tovars with prior
inconsistent statements alleging that they feared Carter would have
benefited Carter by way of discrediting the Tovars’ testimony.
¶112 We agree with Carter that his Napue claim creates a
genuine dispute of material fact as to whether there would be a
reasonable likelihood of a different outcome with respect to guilt and
sentencing had Mr. Watson corrected Mr. Tovar’s false testimony.
Therefore, Carter has demonstrated a genuine dispute of material
fact as to whether he was prejudiced under the PCRA’s materiality
33
CARTER v. STATE
Opinion of the Court
standard. Accordingly, the district court’s grant of summary
judgment on this issue was erroneous. 18 We reach this conclusion on
many of the same grounds discussed with respect to Carter’s Brady
claims.
¶113 For reasons detailed above, see supra ¶¶ 59–67, we disagree
with the district court’s conclusion that Mr. Tovar’s testimony was
consistent over time. Mr. Tovar changed his story to both provide
the missing link with respect to the murder weapon and to provide
the State with testimony about Carter’s premeditated intent to rape.
In other words, Mr. Tovar’s testimony changed over time in a way
that was damaging to Carter at both the guilt and sentencing
phases. 19
¶114 We further disagree with the district court’s conclusion
that the evidence of financial benefits had as great a potential to
prejudice Carter as it did to help him. As noted above, see supra ¶ 68
n.12, we remain skeptical—at best—that impeaching the Tovars with
prior inconsistent statements would be more harmful than helpful to
Carter. In doing so, the State would be impeaching its own key
witnesses. Given the lack of physical evidence linking Carter to the
crime and given the lack of intent discernible from Carter’s
confession, we simply cannot conclude that impeaching the Tovars
with prior inconsistent statements would prejudice Carter more than
it would help him. Most importantly, when drawing all reasonable
inferences in Carter’s favor—as we must do on summary
judgment—we find that there is a reasonable inference that
impeaching the Tovars would help Carter more than it would
prejudice him. The district court’s disposal of Carter’s Napue claim
was therefore erroneous.
¶115 Carter has demonstrated a genuine dispute of material fact
as to whether there is a reasonable probability that the outcome of
_____________________________________________________________
18Because we hold that a genuine dispute of material fact exists
under the more stringent PCRA standard, we need not address
Carter’s argument that the district court erred in applying the PCRA
materiality standard. We note that implicit in our holding is the fact
that Carter’s Napue claim also satisfies the less stringent Napue
materiality standard.
19We again note that the inconsistency in Mr. Tovar’s testimony
is more damaging with respect to sentencing, given the lack of any
evidence of premeditated intent contained in Carter’s signed
confession.
34
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the proceedings would have been different but for Mr. Watson
knowingly failing to correct Mr. Tovar’s false testimony. If testimony
about the financial benefits the Tovars received had been revealed,
Carter would have been able to more effectively impeach the Tovars.
Carter would have been able to question the Tovars’ motives for
testifying against him and would have been able to identify the State
as a powerful catalyst for the inconsistencies in the Tovars’
testimony. Furthermore, this revelation may have opened the door
for Carter to elicit testimony regarding the Tovars’ claims that police
instructed them to lie at trial about any benefits received. Taken
together, this evidence would have had the effect of tainting the
Tovars’ testimony by assigning an ulterior motive to their statements
made at trial: the Tovars were testifying on behalf of the State in
exchange for financial benefits received. We cannot conclude—as the
district court did—that this evidence, as a matter of law, does not
demonstrate a reasonable probability of a different outcome.
Accordingly, we reverse and remand for an evidentiary hearing on
Carter’s Napue claim.
IV. CARTER’S IMPROPER VOUCHING CLAIMS
¶116 In addition to his Brady and Napue claims, Carter also
claims that the prosecution improperly vouched for the Tovars at
trial and that this vouching presents constitutional error correctable
under the PCRA.
¶117 While prosecutors are permitted to invite the jury to credit
the testimony of a state’s witness, it is impermissible for the
prosecution to “place[] the prestige of the government behind the
witness by making explicit personal assurances of the witness’
credibility” or “implicitly . . . indicat[e] that information not
presented to the jury supports the testimony.” State v. Ashcraft, 2015
UT 5, ¶ 35, 349 P.3d 664 (citation omitted) (internal quotations marks
omitted).
¶118 Carter argues that the prosecution improperly vouched for
the Tovars’ testimony at trial. Carter cites to Mr. Watson’s closing
statement, in which he said, “You know, [Ms. Tovar] to me was one
of the most impressive witnesses in this particular case. She told you
in all honesty everything that she saw.” Carter also cites to the trial
testimony of Lieutenant Pierpont, who testified on cross-
examination that he “ha[d] a great deal of belief in [Mr. Tovar’s]
credibility.” The State moved for summary judgment on the ground
that this claim was procedurally barred.
¶119 The district court agreed with the State and held that
Carter’s claim was barred under PCRA section 78B-9-107(2)(e),
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CARTER v. STATE
Opinion of the Court
which provides a one year statute of limitations from “the date on
which petitioner knew or should have known, in the exercise of
reasonable diligence, of evidentiary facts on which the petition is
based.” The district court held that Carter knew of the factual basis
for asserting his claim when Mr. Watson and Lieutenant Pierpont
made their statements during the guilt phase of the criminal trial in
1985 and his claim was therefore procedurally barred.
¶120 On appeal, Carter argues that no such time bar exists
because the claim of improper vouching is “inextricably bound with
the newly discovered evidence.” Accordingly, Carter argues that
because his claim of improper vouching is raised in the context of the
newly discovered evidence, this contextual wrinkle reset the statute
of limitations clock when Carter discovered the evidence in 2011. We
disagree.
¶121 As the district court correctly pointed out, the basis for an
improper vouching claim is generated by the prosecutor’s statements
to the jury, not by the prosecutor’s knowledge of the veracity of a
witness’s testimony. In other words, the veracity of the underlying
testimony being bolstered is irrelevant to the question of “whether
the jury could reasonably believe that the prosecutor was indicating
a personal belief in the witness’ credibility.” State v. Carter, 776 P.2d
886, 892 (Utah 1989) (citation omitted) (internal quotation marks
omitted). What is relevant is that the bolstering occurred. Because
Carter knew of the prosecutor’s “indicati[on] [of] a personal belief in
the witness’ credibility” when the prosecutor and Lieutenant
Pierpont indicated those beliefs at trial, the one year statute of
limitations began to run in 1985. Accordingly, Carter is procedurally
barred from bringing his claim for improper vouching.
V. CARTER’S EVIDENTIARY CLAIMS
¶122 In addition to its motion for summary judgment, the State
also filed a number of evidentiary objections to exhibits attached to
Carter’s petition for post-conviction relief. The district court granted
a number of these objections and Carter appeals therefrom. We now
address Carter’s response to each of these rulings in turn.
Declaration of Steven Killpack
¶123 Carter proffered a declaration from Steven Killpack, who
was the Utah County Attorney during portions of Carter’s
resentencing proceedings in 1992. In his declaration, Mr. Killpack
states that the information in the Tovars’ declarations constitutes
Brady material and that he would have turned this information over
to defense counsel if he had known about it at resentencing. In
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Mr. Killpack’s estimation, this information is “significant
impeachment information” and is “material to the outcome of guilt
and of sentencing.” He also states that he is unsurprised that the
Tovars would have received benefits and that the Provo Police
Department would be “highly motivated to do everything possible
to ensure a conviction and a death sentence” given Ms. Olesen’s
relation to the Provo Police Chief.
¶124 The State argued below that the bulk of Mr. Killpack’s
declaration comprises opinion testimony and was inadmissible
under Utah Rule of Evidence 602 because Mr. Killpack does not have
“personal knowledge of the matter.”20 In the State’s view,
Mr. Killpack relied on the Tovars’ declarations instead of his
personal knowledge of the situation and therefore any statements
about the benefits the Tovars received or the effects therefrom are
speculative. The State also argued that Mr. Killpack offers a number
of legal conclusions, which are inadmissible under Utah Rule of
Evidence 704.
¶125 The district court agreed with the State and sustained the
objection for the reasons articulated by the State.
¶126 On appeal, Carter argues that Mr. Killpack’s testimony
was based on personal knowledge because he has personal
knowledge of the Provo Police Department and its employees
during the time at issue since he would have interacted with them
during his time as a prosecutor. Additionally, Carter argues that,
with respect to the State’s claim that Mr. Killpack offers legal
conclusions, Mr. Killpack’s perspective on whether the Tovars’
declarations constitute Brady material and the effect that material
would have had on a jury was germane to the issue before the
district court.
¶127 We agree with the district court that the portions of
Mr. Killpack’s declaration to which the State objects do not appear to
be based on personal knowledge. For example, while Mr. Killpack
_____________________________________________________________
20 The State did not object to portions of the declaration that
offered fact testimony within Mr. Killpack’s personal knowledge
such as the fact that he was the Utah County Attorney during the
relevant times and that he would have disclosed the information
about benefits received by the Tovars if he had known about it.
Accordingly, the district court did not strike any portion of Mr.
Killpack’s declaration that the State identified as fact testimony
within his personal knowledge.
37
CARTER v. STATE
Opinion of the Court
declares that he is not surprised that the Tovars would receive
benefits, he has no personal knowledge of whether the Tovars
actually did receive benefits. Instead, he improperly relies on the
Tovars’ declarations for these foundations. Additionally, his
declarations with respect to the information constituting Brady
material offer improper legal conclusions under rule 704. See, e.g.,
Steffensen v. Smith’s Mgmt. Corp., 862 P.2d 1342, 1347 (Utah 1993)
(“[Rule 704] is not intended to allow a witness to give legal
conclusions.”); State v. Davis, 2007 UT App 13, ¶ 15, 155 P.3d 909(“[O]pinions that tell the jury what result to reach or give legal
conclusions continue to be impermissible under rule 704.” (citation
omitted) (internal quotation marks omitted)). Therefore we conclude
that the district court did not abuse its discretion in sustaining the
State’s objection to Mr. Killpack’s declaration.
Declaration of Dr. Breck Lebegue
¶128 Carter proffered a declaration from Dr. Breck Lebegue, a
psychiatrist who had been retained by Mr. Watson, the prosecutor in
Carter’s case, to provide a psychiatric evaluation on two defendants
in a different capital case. Dr. Lebegue states that he was hired as a
confidential psychiatric consultant to opine on issues of competency
and mental state defenses. Dr. Lebegue recalls opining that both
defendants in that case were incompetent to stand trial and that it
has always bothered him that his opinion was never shared with the
trial defense counsel because he felt that his opinion was relevant to
the defense and the question of competency to stand trial.
¶129 The State argued that Dr. Lebegue’s declaration was
inadmissible for two reasons. First, the State argues that Dr. Lebegue
does not have any personal knowledge of Carter’s case generally and
the prosecutor’s specific conduct in this case. Second, the State
argues that any testimony about Mr. Watson’s behavior in another
case constitutes improper character evidence under Utah Rule of
Evidence 404(a), which prohibits the admission of evidence “to
prove that on a particular occasion the person acted in conformity
with the character or trait” described in the evidence.
¶130 The district court agreed with the State and sustained the
objection for the reasons articulated by the State.
¶131 On appeal, Carter argues that Dr. Lebegue possesses
personal knowledge about how Mr. Watson handled his disclosure
obligations under Brady, albeit in a different case. Carter also argues
that Dr. Lebegue’s declaration is not improper character evidence
because “Mr. Watson’s adherence to Brady is not a question of
character, it is a question of his understanding of his legal duties as a
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prosecutor.” Additionally, Carter argues that the declaration offers
important impeachment evidence with regard to the prosecutor’s
credibility in the event that the State argues that Mr. Watson did not
know about the benefits the Tovars received.
¶132 We agree with the district court that Dr. Lebegue’s
testimony regarding Mr. Watson’s behavior in a different case
constitutes improper character evidence under rule 404. Carter’s
assertion that the evidence is offered to demonstrate Mr. Watson’s
understanding of his legal duties is unavailing because his personal
understanding of his duties as a prosecutor is irrelevant to Carter’s
Brady and Napue claims. 21 We agree with the district court’s finding
that the most logical import of Dr. Lebegue’s testimony is a desire to
demonstrate that Mr. Watson acted in conformity with the character
or trait of not disclosing evidence to defendants’ counsel and
therefore find no abuse of discretion by the district court in
sustaining the State’s objection. For these reasons, we hold that the
district court did not abuse its discretion in sustaining the State’s
objection to Dr. Lebegue’s declaration.
Declaration of Dr. Mark Cunningham
¶133 Carter proffered a declaration from Dr. Mark
Cunningham, a psychologist hired by Carter’s current counsel to
provide expert evaluation on factors impacting Carter’s confession in
1985 and the Tovars’ ability to provide accounts of what Carter told
them on the night of the murder. Dr. Cunningham opined that
Carter suffered from a number of neuro-cognitive defects at the time
of his confession and that “these vulnerabilities rendered him
particularly susceptible to coercive pressures and faulty risk/benefit
analysis of the consequences of signing a statement.”
Dr. Cunningham also opined that the Tovars’ declarations “provide
strong support for a conclusion that both were experiencing
_____________________________________________________________
21 Under Brady, the relevant inquiry is whether the prosecution
suppressed favorable evidence and, if so, whether prejudice ensued.
See supra ¶¶ 49–53. Under Napue, the relevant inquiry is whether the
prosecutor failed to correct testimony which he or she knew to be
false. See supra ¶ 107. In neither inquiry is it required to first establish
that the prosecutor knew that he or she had duties under Brady or
Napue. In other words, a Brady or Napue violation can occur even if
the prosecutor is unaware of his or her duties under Brady and
Napue.
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CARTER v. STATE
Opinion of the Court
significant psychological coercion regarding their statements to
police and testimony at the preliminary hearing and trial.”
¶134 The State argued that Dr. Cunningham’s declaration was
irrelevant and therefore inadmissible under Utah Rule of Evidence
402 because it was offered for the sole purpose of supporting a
procedurally barred claim: challenging Carter’s confession. In the
State’s view, Dr. Cunningham’s declaration had no tendency of
making the alleged Brady and Napue violations more or less likely.
¶135 The district court agreed with the State and sustained the
objection for the reasons articulated by the State.
¶136 On appeal, Carter argues that Dr. Cunningham’s
declaration is relevant to his Brady and Napue claims. Carter claims
that, in the absence of the Brady and Napue violations, trial counsel
would have every reason to more diligently challenge the confession
and the Tovars’ statements and that Dr. Cunningham’s declaration
illustrates the type of evidence that Carter’s counsel could have
presented at trial to lessen the power of the confession.
¶137 The State argues, and Carter seems to agree, that the
relevance of the declaration relates to challenging Carter’s
confession. And while counsel is permitted to explore how trial
preparation and strategy would have been different had Brady and
Napue violations not occurred, we disagree with Carter that trial
counsel would have had a demonstrably greater reason to challenge
the confession. Given the lack of physical evidence in this case,
Carter’s confession was critical to the prosecution’s case. Carter’s
trial counsel had every reason to lessen the power of the confession.
Accordingly, it is irrelevant what types of evidence Carter’s trial
counsel could have presented at trial to further lessen the power of
the confession. For this reason, we agree with the district court’s
holding that Dr. Cunningham’s declaration is irrelevant and
inadmissible under rule 402.
Janet Dowling’s Social History Report
¶138 Carter proffered a social history report prepared by Janet
Dowling, a mitigation specialist, in 2003. The report indicates that
Carter “faced a multitude of obstacles to healthy development”
including racial discrimination, an unsteady home, and drug and
alcohol abuse.
¶139 The State objected to the report, arguing that it is
irrelevant to the issues raised in Carter’s petition and therefore is
inadmissible under Utah Rule of Evidence 402.
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¶140 The district court agreed with the State and sustained the
objection for the reasons articulated by the State.
¶141 On appeal, Carter argues that the report is relevant to the
materiality of the Brady and Napue claims because it undermines the
reliability of Carter’s confession. Carter also argues that the report
provides “additional mitigation” that “must also be factored in to the
materiality analysis for the sentencing phase.”
¶142 We agree with the district court’s holding that
Ms. Dowling’s report is irrelevant and inadmissible under rule 402.
To the extent that the report is used to challenge the confession, this
claim is procedurally barred and therefore any evidence supporting
that claim is irrelevant and inadmissible for that purpose. Carter’s
argument that the report provides additional mitigation that must be
factored in to our materiality analysis is misguided. Our materiality
analysis focuses on whether the outcome of Carter’s trial and
sentencing would have been different but for the Brady and Napue
violations. Because the report does not constitute Brady or Napue
material, we do not consider it when assessing materiality.
Declaration of Kevin Kurumada
¶143 Carter proffered a declaration from Kevin Kurumada, an
attorney who worked on an amicus brief for Carter in his first direct
appeal and who has had limited in-person interaction with Carter. In
his declaration, Mr. Kurumada states that he saw Carter “one time,
very briefly” and that his impression was that “Carter had a very
low IQ, possibly within the range of mental retardation,” informed
by his observation that Carter was “monosyllabic in his speech.”
Mr. Kurumada also declares that he believes Carter’s case was a
capital case “primarily because the victim was related to the police
chief.”
¶144 The State argued that Mr. Kurumada’s declaration was
irrelevant under Utah Rule of Evidence 402. In the State’s view,
Kurumada’s statement about his perception of Carter’s intelligence
has no tendency to make Carter’s Brady and Napue claims more or
less likely. And even if it were relevant, Mr. Kurumada lacked the
basis for forming the opinion that Carter had a very low IQ because
Mr. Kurumada “had no knowledge of [Carter’s] background or
education.” With respect to the declaration about Carter’s case being
a capital case, the State argued that this was irrelevant under rule 402
because Mr. Kurumada’s personal opinions about the case do not
make the viability of Carter’s Brady and Napue claims more or less
likely.
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CARTER v. STATE
Opinion of the Court
¶145 The district court agreed with the State and sustained the
objection for the reasons articulated by the State.
¶146 On appeal, Carter argues that Mr. Kurumada’s declaration
is relevant to the discussion of Carter’s susceptibility to coercive
interrogation tactics, which Carter claims is relevant because the
nature of Carter’s confession elevates the importance of the Tovars’
testimony and credibility. Additionally, Carter argues that
Mr. Kurumada’s statement that Carter’s case was capital because of
the victim’s relation to the police chief is relevant because it shows
that the police had a motive to “shift blame from [Ms. Olesen’s
husband] to Carter.”
¶147 We agree with the district court that Mr. Kurumada’s
statements are irrelevant and inadmissible under rule 402.
Mr. Kurumada’s statement that he thought Carter had a very low IQ
is irrelevant for the reasons discussed above, namely that the
veracity of Carter’s confession is not at issue in this case. While there
is no doubt that any questions regarding Carter’s confession would
elevate the importance of the Tovars’ testimony, Carter is now
procedurally barred from challenging his confession. Additionally,
we agree with the State that Mr. Kurumada’s personal opinions
about the motives of police and the prosecution are irrelevant to
Carter’s Brady and Napue claims.
Declaration of Jeffrey J. Hunt
¶148 Carter proffered a declaration from Jeffrey J. Hunt, an
attorney who represented Carter in his first post-conviction case.
Mr. Hunt’s declaration primarily discussed the financial and
expertise limitations that Carter’s first post-conviction team faced
and explains why certain strategic avenues were not explored.
Mr. Hunt also explained how he would have wanted to present the
reports prepared by Dr. Cunningham and Ms. Dowling had they
been available when he was representing Carter. Mr. Hunt also
stated that it is his understanding and belief that Utah’s post-
conviction funding statute provides insufficient funding to pay for
experts and investigators.
¶149 The State argued that Mr. Hunt’s declaration did not bear
on Carter’s Brady and Napue claims and was therefore irrelevant and
inadmissible under rule 402. The State also argued that Mr. Hunt’s
statements relating to the post-conviction funding statute lack
foundation and constitute prohibited lay opinion.
¶150 The district court overruled the State’s objection to the
extent that the declaration provides support for why Carter did not
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bring his claims earlier, but sustained the objection with respect to
the remainder of the declaration.
¶151 On appeal, Carter argues that Mr. Hunt’s assessment of
the usefulness of Dr. Cunningham’s and Ms. Dowling’s reports is
relevant because it shows how Carter may have been susceptible to
coercive interrogation tactics. Carter also argues that Mr. Hunt has
sufficient knowledge of his own experience to give his opinion of the
difficulty of undertaking a complex case with inadequate resources.
¶152 We agree with the district court that the portions of
Mr. Hunt’s declaration it deemed inadmissible are irrelevant and
inadmissible under rule 402. Because Carter’s confession cannot be
challenged in this appeal, any assessment of the usefulness of
Dr. Cunningham’s and Ms. Dowling’s reports is irrelevant.
Additionally, Mr. Hunt’s opinion about the lack of funding for
experts and investigators in this kind of case is likewise irrelevant
beyond being offered for the purpose of demonstrating why Carter
did not bring his claims sooner.
Declaration of Bradley Rich
¶153 Carter proffered a declaration from Bradley Rich, another
attorney who worked on Carter’s first post-conviction case. Mr. Rich
explains why he felt that he and the attorney he was working with,
Jack Morgan, were unable to effectively represent Carter in his
post-conviction proceedings. Mr. Rich states that their budget was
extremely limited and that Mr. Morgan took charge of the
investigation but accomplished very little. In Mr. Rich’s view, he and
Mr. Morgan should have more thoroughly investigated the case.
Mr. Rich declares that he would have included information from the
Tovars’ declarations had it been known to him at the time they filed
Carter’s first post-conviction petition. Additionally, Mr. Rich opines
that he would have wanted to use the information contained in
Dr. Cunningham’s and Ms. Dowling’s reports to press ineffective
assistance of counsel claims.
¶154 The State argued that Mr. Rich’s declaration was irrelevant
and inadmissible under Utah Rule of Evidence 402 because Carter
does not show how it bears on his Brady and Napue claims. The State
also claimed that Mr. Rich’s declaration was inadmissible in its
entirety because it addresses only his personal views about the
adequacy of Carter’s post-conviction representation and the value of
Dr. Cunningham’s and Ms. Dowling’s reports.
¶155 The district court overruled the State’s objection with
respect to the portion providing support for why Carter did not file
his claims sooner and how Mr. Rich’s representation may have been
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CARTER v. STATE
Opinion of the Court
different had he known about the information in the Tovars’
declarations. The district court sustained the objection with respect
to the remainder of Mr. Rich’s declaration, finding that it was
irrelevant to the substance of Carter’s Brady and Napue claims.
¶156 On appeal, Carter argues that Mr. Rich’s declarations are
relevant in their entirety because they provide part of the basis for
Carter’s inability to bring his Brady and Napue claims in an earlier
proceeding. Carter also argues that Mr. Rich is competent to assess
what he and his associates should have done when representing
Carter.
¶157 We agree with the district court that the portions of
Mr. Rich’s declaration it deemed inadmissible are irrelevant and
inadmissible under rule 402. Carter’s first argument regarding the
relevance of Mr. Rich’s declaration is unavailing because the district
court already overruled the objection with respect to those portions
that provide support for why Carter did not file his claims earlier.
We agree with the district court that the rest of Mr. Rich’s declaration
is irrelevant to Carter’s Brady and Napue claims. Mr. Rich’s opinion
of what he should have done differently while representing Carter
has no bearing on whether a Brady or Napue violation occurred and,
if so, whether Carter was prejudiced by those violations.
Declaration of Perla Bermudez
¶158 Carter proffered a declaration from Perla Bermudez, a
friend of Carter and the Tovars. Ms. Bermudez declares that police
threatened her with deportation if she did not cooperate with their
investigation of Carter. Ms. Bermudez also declares that the Tovars
told her that they had been similarly threatened by police with
deportation and the loss of their child.
¶159 The State argued that Ms. Bermudez’s testimony
regarding her experience with police was improper character
evidence under Utah Rule of Evidence 404(b), introduced to show
that police frequently threatened witnesses with deportation.
Additionally, this testimony was irrelevant in the State’s view
because it does not make the viability of Carter’s Brady and Napue
claims any more or less likely. The State also argued that
Ms. Bermudez’s statements regarding the Tovars constituted
inadmissible hearsay under Utah Rule of Evidence 802.
¶160 The district court agreed with the State and sustained the
objection on the grounds that testimony about police treatment was
impermissible character evidence and statements about the Tovars
were inadmissible hearsay.
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¶161 On appeal, Carter argues that Ms. Bermudez’s declaration
is relevant to show that Provo Police used threats of deportation to
coerce cooperation from witnesses. Additionally, Carter argues that
rule 404 does not apply in this context because Ms. Bermudez’s
statements do not identify any individual police officer so her
statements cannot constitute character evidence.
¶162 We agree with the district court that Carter’s admission
that the declaration is being offered to show that Provo Police used
threats of deportation demonstrates that this evidence is being used
as character evidence under rule 404(b). Carter argues that this
finding is irrelevant because there is no individual police witness
whose character is at issue and therefore rule 404(b) is inapposite. In
doing so, Carter presents an interesting question of law: whether
rule 404 applies to groups and entities. This appears to be a matter of
first impression for this court, and is an unsettled area of law
generally. See, e.g., 22B CHARLES ALAN WRIGHT ET AL., FEDERAL
PRACTICE AND PROCEDURE EVIDENCE § 5234 (2d ed. 2018) (“Only a
handful of cases apply the character rules to corporations—often
with little or no consideration of the issues raised here. . . . We think
it safe to say that as of this writing the proper method of handling
issues of corporate character remains an open question.” (citation
omitted)). But Carter’s brief contains only one (tautological) sentence
addressing this issue and provides no citation to authority for his
position. This is plainly inadequate. Because Carter has not
adequately briefed this issue we do not pass on his claim that rule
404 cannot apply here and therefore affirm the district court’s ruling
on this issue.
¶163 We also agree with the district court that Ms. Bermudez’s
statements about the Tovars being threatened by police constitute
hearsay, as the statements appear to be offered for the truth of the
matter asserted and no hearsay exception applies. Because no
hearsay exception applies, the district court did not abuse its
discretion in granting the State’s objection to this testimony.
Deposition of Wayne Watson and Deposition Exhibits 16-19
¶164 Carter deposed Wayne Watson, the Utah County
prosecutor in the original trial, as part of this post-conviction appeal.
The State argued below that portions of the deposition and exhibits
16-19 attached thereto were inadmissible. The district court
sustained the objection with respect to certain portions of the
deposition transcript and with respect to exhibits 16-19.
¶165 On appeal, Carter recognizes that this evidence is not at
issue in this appeal because the district court found a genuine issue
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CARTER v. STATE
Opinion of the Court
of material fact exists regarding whether Mr. Watson suppressed
financial benefits received by the Tovars and knowingly failed to
correct false testimony. Accordingly, Carter has not provided
briefing arguing that we should reverse the district court’s ruling on
this evidence. Because Carter has not briefed the issue, we do not
reach it and we affirm the district court’s holding with respect to this
evidence.
CONCLUSION
¶166 We hold that Carter has demonstrated a genuine dispute
of material fact whether he was prejudiced by his Brady and Napue
claims. We therefore reverse and remand for an evidentiary hearing
on Carter’s Brady and Napue claims consistent with this opinion. We
also affirm the district court’s dismissal of Carter’s improper
vouching claim and its evidentiary rulings as detailed in this
opinion.
46