Carter v. State
| Decision Date | 21 March 2019 |
| Docket Number | No. 20170641,20170641 |
| Citation | 439 P.3d 616 |
| Parties | Douglas Stewart CARTER, Appellant, v. STATE of Utah, Appellee. |
| Court | Utah Supreme Court |
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
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.
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 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.
¶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.
¶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.
¶9 On April 8, 1985, Ms. Carter approached Deputy Utah County Attorney Sterling Sainsbury, who she knew through her position as a clerk for the juvenile court, and told him that she thought Carter had been involved in the murder. Ms. Carter suspected that her missing handgun, a .38 special, was the murder weapon and she was afraid that she would be implicated as an accessory to the crime. Mr. Sainsbury informed her that he was obligated to report her story to the Utah County Attorney’s Office and he recommended that she obtain legal counsel and come forth with the information voluntarily. Mr. Sainsbury then sought out the prosecutor assigned to the murder, Utah County Deputy Attorney Wayne Watson, and relayed Ms. Carter’s statements to him.
¶10 Ms. Carter sought advice from Robert Orehoski, who was representing her in her divorce action against Carter. Mr. Orehoski, who coincidentally happened to be Mr. Watson’s private law partner, recommended that she seek a conditional grant of immunity in exchange for her information. Ms. Carter decided to give a statement to police and agreed to a search of her home, during which police recovered several articles of bloodstained clothing2 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.
¶12 Based on the information provided by Ms. Carter, police next interviewed Perla LaCayo Bermudez on April 10, 1985.3 Ms. Bermudez was friends with Carter and Mr. Tovar and had seen both of them in the days prior to her interview. Ms. Bermudez told police that Carter had been acting strange in the month prior and that he had told her that he was a suspect in Ms. Olesen’s murder. Carter said he planned to leave for Chicago and gave Ms. Bermudez a portable whirlpool used to heat up water as a parting gift. When she tried to use the whirlpool, it began smoking; she opened the whirlpool to reveal a gun wrapped in some kind of rag or t-shirt. Carter later returned to retrieve the whirlpool. A few days later, Ms. Bermudez and Mr. Tovar drove Carter just across state lines to Wendover, Nevada to catch a bus to Chicago.
¶13 When asked whether Mr. Tovar knew that Carter was a suspect in the murder, Ms. Bermudez initially responded that she did not think Mr. Tovar knew anything. However, Ms. Bermudez later changed course and offered that Mr. Tovar told her that Carter had confessed to him about the murder.4 Mr. Tovar told her that Carter had gone to Ms. Olesen’s house and forced his way inside. Ms. Olesen grabbed a knife from the kitchen, but then dropped it when Carter told her to let go of it. Carter instructed Ms. Olesen to lie down on the floor, where he pulled her pants down. Carter then stabbed Ms. Olesen in the back and shot her through a pillow.
¶14 Mr. Tovar told Ms. Bermudez that he was afraid of Carter and what Carter might do to his family. Mr. Tovar also told her that he was not sure if he believed Carter because Carter lied a lot.
¶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, 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,
¶17 According to Mr. Tovar, Carter was at Mr. Tovar’s house on the night of the murder and left around 7:30 pm to "go and try to steal some money." Carter returned to Mr. Tovar’s house a couple hours later and appeared visibly shaken. Carter told Mr. Tovar that he had killed Ms. Olesen. Carter had gone to the Olesens’ house and knocked on the door. When Ms. Olesen answered the door, Carter felt that the...
To continue reading
Request your trial
-
State v. Prisbrey
...not believe it was improper for the State to rely on it as one piece of the evidentiary puzzle.8 See Carter v. State , 2019 UT 12, ¶ 75, 439 P.3d 616 ("The line between a reasonable inference and speculation can be difficult to draw, but a reasonable inference exists when there is at least ......
-
State v. Clyde
...based, while in the case of speculation, there is no underlying evidence to support the conclusion." Carter v. State , 2019 UT 12, ¶ 75, 439 P.3d 616 (cleaned up). ¶26 Viewing the evidence deferentially, there is enough evidence here to establish the applicable standard of care. The State p......