This opinion is subject to revision before final
publication in the Pacific Reporter
2025 UT 13
IN THE
SUPREME COURT OF THE STATE OF UTAH
DOUGLAS STEWART CARTER,
Appellee,
v.
STATE OF UTAH,
Appellant.
No. 20221116
Heard December 15, 2023
Filed May 15, 2025
On Direct Appeal
Fourth District Court, Provo
The Honorable Lynn W. Davis
The Honorable Derek P. Pullan
No. 150400825
Attorneys:
Eric Zuckerman, Salt Lake City, Jon M. Sands, Paula K. Harms,
Phx., Ariz., for appellee
Derek E. Brown, Att’y Gen., Andrew F. Peterson, Deputy Solic.
Gen., Daniel L. Day, Erin Riley, Asst. Solics. Gen., Salt Lake City,
for appellant
JUSTICE PETERSEN authored the opinion of the Court, in which
JUSTICE POHLMAN, JUDGE RYAN M. HARRIS, JUDGE AMY J. OLIVER,
and JUDGE PAUL B. PARKER joined.
Having recused themselves, CHIEF JUSTICE DURRANT,
ASSOCIATE CHIEF JUSTICE PEARCE, and JUSTICE HAGEN do not
participate herein; COURT OF APPEALS JUDGE RYAN M. HARRIS and
COURT OF APPEALS JUDGE AMY J. OLIVER sat.
DISTRICT JUDGE RICHARD D. MCKELVIE retired after sitting for oral
argument in this case. DISTRICT JUDGE PAUL B. PARKER participated
as his replacement.
CARTER v. STATE
Opinion of the Court
JUSTICE PETERSEN, opinion of the Court:
INTRODUCTION
¶1 In 1985, Douglas Carter was convicted and later sentenced
to death for the murder of Eva Olesen in Provo, Utah. There was
no physical evidence tying Carter to the crime scene. But the
investigation turned up other evidence pointing to Carter, and
Carter ultimately signed a confession to the murder. At trial, two
witnesses for the State—Epifanio Tovar and his wife Lucia—
provided important testimony corroborating aspects of Carter’s
confession. They testified that they had seen Carter just before and
after the murder, and that Carter had told Epifanio he murdered a
woman and showed Epifanio how he had done it.
¶2 Decades later, however, the Tovars signed sworn
declarations stating that during the investigation and prosecution
of Carter, the police had threatened them, pressured them to make
untrue statements, and instructed them to lie at Carter’s trial about
significant financial support they had received from the police.
Based on these new revelations, Carter petitioned for
postconviction relief under the Postconviction Remedies Act
(PCRA). And the postconviction court in the Fourth Judicial
District held an evidentiary hearing on Carter’s petition.
¶3 After the evidentiary hearing, the court found that Carter’s
trial and sentencing were tainted by serious misconduct by the lead
prosecutor, the lead investigator, and another police officer who
was responsible for “tak[ing] care of” the Tovars. The
postconviction court found that the lead investigator suborned
perjury, telling Epifanio to falsely deny receiving financial
assistance from the police and to falsely claim that Carter said he
was going out to “rape” someone on the night of the murder. The
other officer also instructed the Tovars to lie about receiving
financial assistance from the police.
¶4 And the court found that Epifanio obliged. He lied to the
jury on both points. He falsely testified that just before the murder,
Carter said that he was going to go out and “rape, break, and
drive.” Also, when Epifanio was asked whether the police had
provided him or his family with any financial assistance, he falsely
claimed that he and his wife had received nothing more than a $14
witness fee. In truth, the postconviction court found that the Tovars
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had received about $4,000 in financial assistance from the police in
the months leading up to trial.
¶5 The prosecutor did not disclose any of this to the defense.
And even though the prosecutor knew that the Tovars had received
financial help from the police, the prosecutor did not correct
Epifanio’s false testimony on this point.
¶6 In light of these serious findings, the postconviction court
concluded that the State had violated Carter’s constitutional right
to due process. First, it concluded the State had violated Brady v.
Maryland, 373 U.S. 83 (1963), because it suppressed evidence that
was favorable to Carter and material to both his guilt and sentence.
Additionally, it concluded the State had violated Napue v. Illinois,
360 U.S. 264 (1959), because the prosecutor knowingly failed to
correct Epifanio’s false testimony. It then determined that these
violations prejudiced Carter at the guilt and sentencing stages of
his trial, explaining that its “confidence [was] undermined in both
Carter’s conviction and sentence.” The court granted Carter’s
petition for postconviction relief, vacated his conviction and
sentence, and ordered a new trial.
¶7 The State appeals the postconviction court’s order. It is
important to note that, for the most part, the State does not
challenge the court’s factual findings. Further, the State does not
dispute that it wrongfully suppressed exculpatory evidence and
that the prosecutor knowingly failed to correct at least one instance
of false testimony. Rather, the State argues that the postconviction
court used an incorrect legal standard in part of its prejudice
analysis, and that overall, these constitutional violations did not
prejudice Carter under the applicable PCRA standards.
¶8 We agree with the State that part of the postconviction
court’s prejudice analysis relied on an incorrect legal standard.
However, applying the correct legal standard, there is no question
that these numerous constitutional violations—suppressing
evidence, suborning perjury, and knowingly failing to correct false
testimony—prejudiced Carter at both his trial and sentencing. We
affirm.
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CARTER v. STATE
Opinion of the Court
BACKGROUND1
¶9 Eva Olesen was murdered in her Provo home in 1985. She
was found by her husband with her “hands . . . tied behind her
back, her clothes . . . removed from the waist down, and her
sanitary pad . . . lying at her feet.” Carter v. State, 2019 UT 12, ¶ 5,
439 P.3d 616. She had been stabbed ten times and shot in the back
of her head.
Id. Detectives recovered from the crime scene nineteen
fingerprints, a blond hair fiber, a slug from a .38 special handgun,
and one “unburned gun powder particle” lifted from a
bloodstained pillow found near Mrs. Olesen’s body.
The Investigation
¶10 The Provo City Police Department assigned Lieutenant
George Pierpont to lead the investigation. After a few weeks, the
police received two tips that pointed to Carter as a potential
suspect. First, a witness identified Carter as a possible suspect in a
vehicle trespass offense that occurred near the Olesen home shortly
before the murder. And second, the police learned that Carter’s
wife Anne had “rushed home after learning of the murder to see if
Carter had been involved.”
¶11 The police brought in Carter for questioning on two
occasions. He admitted that he knew Mrs. Olesen because she had
purchased Avon products from his wife. But he denied any
involvement in the murder.
¶12 The following month, Anne Carter—who was in the
process of divorcing Carter—made a statement to the police. She
suspected that Carter may have used her .38 special handgun,
which was missing, in the murder. She reported that Carter had
__________________________________________________________
1 At times, we reference some of our previous opinions in this
case when describing the procedural history or the basic facts of the
underlying case. The rest of this background is drawn from the trial
court record and the record of the proceedings in the
postconviction court, including the postconviction court’s findings
of fact and conclusions of law. We note, as did the postconviction
court, that the postconviction court’s findings “are based on
evidence presented in this civil action for post[]conviction relief. If
a new criminal trial is held, the jury will be tasked with making its
own independent findings about the credibility of witness[es], the
facts of the case, the guilt or innocence of Carter, and if necessary,
what penalty should be imposed.”
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told her that on the night of the murder, he had visited his friend
Epifanio Tovar. He said that two other people were at Epifanio’s
house, and one of them “held a grudge against Provo Police Chief
Swen Nielsen, who was Mrs. Olesen’s nephew.” Id. ¶ 11. Anne said
Carter told her that he and Epifanio’s two friends went to the
Olesens’ home to steal a gold necklace, and he stayed in the car
while the other two knocked on the door and went inside. 2 He
claimed that he did not know what happened in the house, but
when the two men returned to the car, they said that Mrs. Olesen
was dead.
¶13 Anne allowed the police to search her home. They found
several pieces of bloodstained clothing and some .38 caliber
ammunition. However, the police ultimately determined that the
blood on the clothes did not belong to Mrs. Olesen.
Perla Lacayo
¶14 As the investigation continued, Pierpont learned that in
the days following the murder, Carter spent time with Perla
Lacayo. Perla was a friend of Carter and the Tovars. Pierpont went
to Perla’s home to interview her but found her three children home
alone. He called the Division of Child and Family Services to “take
care of the children.” About twenty minutes later, Perla returned
home. Pierpont attempted to interview her about Carter, but she
spoke Spanish and very little English. So Pierpont assigned Officer
Richard Mack, a Spanish-speaking officer, to obtain her statement.
When Mack arrived, Perla was “crying and obviously nervous.”
¶15 Over the course of Mack’s interview of Perla, she told him
that she was a friend of Carter and Epifanio, and she had seen both
of them recently. She had observed that over the last month, Carter
had been acting strangely. He told her he was a suspect in Mrs.
Olesen’s murder, and he was going to leave for Chicago. Carter had
recently given Perla a portable whirlpool bath. But when she
looked inside it, she found a gun wrapped in a rag.
¶16 Perla told Mack that she and Epifanio had driven Carter to
Wendover, Nevada, so Carter could catch a bus to Chicago. And
although she initially denied it, Perla eventually informed Mack
that Epifanio told her Carter had confessed to him about the
__________________________________________________________
2 For ease of reference, we refer to a number of individuals by
their first names, with no disrespect intended.
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CARTER v. STATE
Opinion of the Court
murder. She provided Mack with details Epifanio said he had
learned from Carter.
Epifanio Tovar
¶17 Based on this information, Pierpont arrested Epifanio for
obstructing justice because he had driven Carter to Wendover,
knowing Carter had committed murder. Pierpont interrogated
Epifanio, who eventually admitted that on the night of the murder,
Carter had confessed to killing a woman and had described how he
shot and stabbed her. When Pierpont asked Epifanio if Carter
enjoyed stabbing the woman, Epifanio answered, “No. He said it
was awful after.”
¶18 Later during the investigation, Mack interviewed Epifanio
about whether he had any knowledge of the location of the gun that
had been used in the murder. Epifanio said that he had seen the
gun when it was purchased and in the “whirlpool machine at
Perla’s home,” but that Carter “had never given him the gun to get
rid of it.”
Lucia Tovar
¶19 Pierpont assigned Mack to interview Lucia Tovar in
Spanish. During the interview, Lucia told Mack that she was
present during a conversation between Carter and Epifanio on the
night of the murder and that they were “talking . . . about
something she could not understand.” Lucia also stated that she
observed Carter “put his hands behind his back with the back of
the wrists touching together,” and that “while Carter spoke with
her husband he was laughing.”
Carter’s Confession
¶20 Carter was eventually arrested in Nashville, Tennessee.
Pierpont traveled there to interrogate Carter at the jail. Before
Pierpont’s arrival, Tennessee police interrogated Carter—for
approximately two hours one day and four hours the next—about
the facts and circumstances of Mrs. Olesen’s death. Carter made no
confessions during these interviews.
¶21 Yet, upon Pierpont’s arrival, he interrogated Carter for
about thirty minutes and then reported that he had obtained a
verbal confession. However, Pierpont did not record the
interrogation. He instead dictated a summary of the confession,
and had the summary transcribed onto a one-page form. Carter
signed the written confession.
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¶22 Epifanio’s and Lucia’s statements to the police
corroborated numerous details of Carter’s confession. So for the
eight to nine months before Carter’s trial, Pierpont assigned Mack
to “keep track of the Tovars.” In this role, Mack was required to
patrol the Tovars’ residence and visit them “two to three times a
week, maybe more.” His objective was to make sure that they
“didn’t leave town for employment, or . . . go back to Mexico,” and
that “they were completely watched and taken care of” until trial.
Mack “took care of the Tovars’ daily living expenses,” including
providing them “money for rent, bills, and groceries.”
Preliminary Hearing
¶23 At the preliminary hearing on the charges against Carter,
the State called Epifanio, Lucia, Perla, and Pierpont to testify.
Wayne Watson, an attorney for Utah County, was the prosecutor.
Epifanio testified that Carter came to Epifanio’s home twice on the
night of the murder. As he was leaving the first time, Carter said he
was “going to break into a car or steal some money.” Returning two
hours later, Carter announced to Epifanio that “he just killed a
woman” by stabbing and shooting her. Epifanio recalled that a few
days later he read a newspaper article about the murder that
prompted him to ask Carter “if he had raped the woman.” Carter
said he did not because she was on her period. Finally, Epifanio
testified that he saw Carter with a gun one time, “when he first
purchased it.”
¶24 Lucia testified at the preliminary hearing that Carter came
to their house on the night of the murder and demonstrated what
he had done. She said she observed a conversation between Carter
and Epifanio but understood “very little.” When asked to
demonstrate for the court what she saw Carter doing, Lucia
explained that “Carter got up where he was sitting and he lay down
on the floor. . . . He bent a little bit and he put his hands on the back
and he start moving his hand back and forth. He opened his legs
and then he just bent more over.”
¶25 Perla testified that she had known Carter for four years.
She said that about one month after the murder, Carter told her that
he was a suspect, and he gave her a whirlpool bath. About eight
days later, Perla and Epifanio opened the box containing the
whirlpool and saw a gun. Then, Carter told her that he needed to
leave Utah because he “bit a lady in her mouth,” so she and
Epifanio drove Carter to Wendover in her car.
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1985 Criminal Trial and 1992 Resentencing
¶26 At the trial, the State did not introduce any physical
evidence tying Carter to the crime scene. Pierpont testified about
Carter’s confession to him. And Epifanio and Lucia’s testimonies
were important, because they both corroborated aspects of
Pierpont’s testimony about Carter’s confession.
¶27 Epifanio testified to the same facts that he had recounted
at the preliminary hearing, including Carter’s telling of how he had
entered the Olesens’ home by threatening Mrs. Olesen with a gun,
then stabbed and shot her. However, during direct examination,
Epifanio attributed a statement to Carter that Epifanio had not
previously mentioned. Watson asked, “What, if anything, did
[Carter] tell you he was going to do when he left for the first time?”
A: He was going to go rape, break, and drive.
Q: And did he tell you that?
A: Yes.
Q: What’s your best recollection . . . of what [Carter]
told you he was going to do? Tell me what you
remember him saying?
A: That he was going to [go] break in[to] a house.
Q: And what, if any, purpose did he tell you why he
was going to do that.
A: Needed money.
¶28 Another significant aspect of Epifanio’s story had also
changed. He admitted on direct examination that he had disposed
of the murder weapon for Carter by throwing the gun in a river,
and that he had informed the police of this on the Saturday before
trial.
¶29 During cross-examination, defense counsel focused on this
new revelation. After getting Epifanio to concede that before
Saturday, the police had asked him about the location of the gun
and he had claimed that “he didn’t know anything about it,” the
following exchange took place:
Q: Well, were you lying or were you telling the truth
there?
A: I was lying.
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Q: If I asked you right now as you sit there on the
witness stand, how many other lies or how many
other stories have you made up in this whole matter,
that you could tell us, right in front of all the jury?
A: Just one.
Q: Just one lie?
A: Yes.
¶30 However, “almost immediately after this exchange,
[d]efense [c]ounsel turned to the question of monetary payments.”
And Epifanio denied receiving any financial benefits from the
police.
Q: Mr. Tovar, did you and or your family anytime
between February and now receive money or support
from Mr. Watson’s office or from Mr. Pierpont, the
police?
A: Just, we just received fourteen dollars.
Q: Just fourteen dollars?
A: Yes, a check from the City.
Q: Nothing else that they offered you or gave you to
stay and be available because you had to be a witness
in this case?
A: No.
Q: What about your family, your wife?
A: No.
Q: You are not on any kind of aid?
A: No. They just gave us a check, one for each of us,
since that last court.
¶31 Portions of Lucia’s testimony are also relevant to this
petition. Lucia testified, through a Spanish interpreter, about
Carter’s visits to the Tovars’ home before and after the murder.
However, her description of Carter’s demeanor and his
demonstration of the murder was more detailed and vivid than it
had been in her first statement to Mack and in her preliminary
hearing testimony. Lucia testified that: “[Carter] laid himself to the
floor showing us exactly how he had forced this individual to lay
down, and then he put his hands behind his back to illustrate how
he had tied her hands behind her back.” This was the only time
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CARTER v. STATE
Opinion of the Court
Lucia said that Carter had tied Mrs. Olesen’s hands. She also
described Carter’s demeanor more vividly, stating that: “He
laughed and laughed about something he had done. And I do not
know if it was because he was nervous or why. But he continued to
laugh.” She recalled Carter “laughing and giggling” while “he kept
repeating the same thing over and over again and he demonstrated
about twice by laying down on the floor and explaining.”
¶32 Lucia also described part of the conversation between
Carter and Epifanio, even though they had been speaking in
English. She said that Carter “told my husband of what he had
done, but my husband said he was crazy . . . . Mr. Carter then told
him ‘I swear by my mother that that is true. . . . [W]atch the news.’”
¶33 Lucia was not asked about whether she had received any
financial benefits from the police.
¶34 The State did not call Perla to testify at trial.
¶35 The jury found Carter guilty of first-degree murder with
two aggravating factors: that “the defendant was engaged in the
commission of or an attempt to commit aggravated burglary,” and
that the “homicide was committed in an especially heinous,
atrocious, cruel, or exceptionally depraved manner.” The State had
also charged Carter with rape as an aggravating factor. But the jury
did not convict him of that aggravator. The next day, the jury
sentenced him to death.
¶36 Carter appealed his conviction and sentence. And this
court vacated his death sentence and remanded for a new
sentencing trial. State v. Carter, 776 P.2d 886, 896 (Utah 1989).
¶37 Carter was resentenced in 1992. But the Tovars could not
be located before the resentencing trial. Consequently, the
prosecutor read portions of Epifanio’s trial testimony and all of
Lucia’s trial testimony to the jury. In closing arguments, the
prosecutor emphasized Epifanio’s testimony that Carter stated his
intent to “rape, break, and drive,” and Lucia’s testimony that Carter
was “laughing and giggling” while demonstrating the murder. The
jury resentenced Carter to death. Carter, 2019 UT 12, ¶ 29.
Postconviction Proceedings and Evidentiary Hearing
¶38 In 2011, Carter’s postconviction counsel located the Tovars
in Mexico. Both of them provided a sworn declaration. Epifanio
declared that the police had threatened him with deportation and
removal of his infant son; paid for his family’s rent, phone, utility
bills, and groceries; and told him to deny he had received any
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financial benefits if asked about it at trial. Id. ¶¶ 30–31. Lucia
declared that her testimony at trial about the conversation between
Epifanio and Carter was based on what her husband told her after
the interaction, not her firsthand knowledge. She also stated that
the police had threatened to deport them and had paid for their rent
and bills, but that the police told them to deny receiving any
benefits at trial. Id. ¶ 32.
¶39 Based on the declarations, Carter petitioned for
postconviction relief. The postconviction court dismissed the
petition on summary judgment. But Carter appealed that decision,
and we reversed and remanded the case for an evidentiary hearing.
Id. ¶¶ 4, 35–37, 41–42.
¶40 In 2021, the postconviction court held a four-day
evidentiary hearing at which Carter presented testimony from nine
witnesses, including Epifanio, Lucia, Mack, and Wayne Watson.
Epifanio and Watson did not testify in person at the hearing.
Rather, the parties deposed both men, and Carter offered portions
of the depositions at the hearing. The State presented testimony
from Perla, Mack, and Pierpont.
¶41 During his video deposition, Epifanio affirmed almost
everything he said at trial about Carter’s confession to him.
However, he testified that Carter did not say before the murder that
he was going to go “rape, break, and drive”; rather, Carter said that
he “was going to break into a car and steal from the car.” (Emphasis
added.) Epifanio explained that he testified falsely “[b]ecause that’s
what [the police] wanted me to say.” Epifanio testified that before
trial he met with Watson and Pierpont to discuss his trial testimony,
and it was in this meeting that the phrase, “rape, break, and drive,”
came up.
¶42 Epifanio also admitted that he lied at trial when he testified
that he and Lucia only received $14 checks from the city. He stated
that, in truth, the police “would pay my rent. They would buy me
food. They would pay for my expenses, my services, like my phone,
electricity and water; gas.” Epifanio explained his false testimony
as follows:
Q: And why did you lie about the items that you
received from the police?
A: Because they asked me not to say anything.
Q: Do you remember when they said that?
A: A little before the trial.
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Q: Do you remember which officer told you that?
....
A: Yes; it was Richard Mack.
Q: And was he the only officer that told you to lie?
A: No.
Q: Which other officer?
A: Pierpont.
¶43 Epifanio also expressed that when he was first interviewed
while under arrest, he was concerned because he and Lucia were
not legal residents of the United States:
Q: How did you feel—how did you feel when you
testified [at] trial?
A: I was scared.
Q: And what did you think would happen to you, if
you did not lie to the jury about the items you
received like the police told you to do?
A: I thought they would put me in jail and take my
son away and deport my wife.
....
Q: Why did you lie to the jury when you testified that
Doug Carter said he was going to rape, break and
drive?
....
A: Because they had told me they would accuse—
they would accuse me of being an accomplice, and
that they would put me in jail and that they would
deport my wife and that they would take my son
away.
¶44 Epifanio further testified that he felt like the police treated
him as a suspect and that during his interrogation, Pierpont was
trying to get him to say things that were not true by pressuring
Epifanio with references to the death penalty and “that they had
witnesses against me.” Epifanio testified that he thought it was
Pierpont who told him not to say anything about the police paying
his rent and other expenses. When asked why he lied, Epifanio
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testified: “I was afraid and that’s why I lied, because . . . if they
didn’t catch the guy, they would arrest me as the murderer.”
¶45 At the evidentiary hearing, Lucia also affirmed the
substance of her trial testimony. However, she took back some of
the detail she had provided in her trial testimony. At trial, Lucia
testified that Carter was “laughing and giggling” while
demonstrating the murder, and that he “laid himself to the floor
showing us exactly how he had forced this individual to lay down,
and then he put his hands behind his back.” Lucia also recalled
details from the English conversation between Epifanio and Carter,
testifying that Carter told Epifanio what he had done, declaring, “‘I
swear by my mother that that is true. . . . [W]atch the news.’”
¶46 At the evidentiary hearing, Lucia recalled, “Yes, he was
demonstrating something on the floor and, yes, he was laughing.”
But she testified that she did not understand anything that Carter
said to her husband because “[t]hey were speaking in English.”
When asked to recall the demonstration, Lucia testified that she
“can’t remember . . . very well, whether [Carter] . . . was [laughing]
when he was lying down.” And she stated that she did not have
any idea what Carter was demonstrating, nor did she know that
Carter was demonstrating something he had done to another
person. Finally, Lucia testified that Mack had threatened Lucia and
her husband with arrest, deportation, and loss of their son more
than three times between her first meeting with Mack on the day
he came to arrest Epifanio and her trial testimony, including a
threat “not to say anything regarding the assistance [the police]
were giving us.”
¶47 Transcripts from Wayne Watson’s deposition were also
admitted at the evidentiary hearing, because Watson passed away
between his deposition and the hearing. Watson disagreed that the
Tovars were important witnesses, stating that he “didn’t even need
[the Tovars]” and “might have thrown them in for extra source.”
Regarding monetary payments, Watson testified that Provo City
paid the Tovars’ rent “for a month or two.” Watson recalled that
the Tovars “didn’t have any money, didn’t have a job and had to
go—leave Utah to go somewhere else . . . and that [Provo City] paid
their rent in the apartment they were living.” He said that “George
[Pierpont] told [him]” about the payments. Attached to Watson’s
deposition was an exhibit that included a handwritten note found
in Watson’s file, which said, “Epifanio—$ only / deposit on
apartment / deposit on phone.” Watson conceded that the
handwriting was his own.
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¶48 Mack testified that because he spoke Spanish, he was
assigned to be the primary contact with the Tovars. His objective
was to “make sure that—that they were taken care of to where they
didn’t leave town for employment, or—or that they didn’t go back
to Mexico or—or—that they were completely watched and taken
care of.” As part of that effort, Mack “provided the Tovars with
items of financial value” including money for bills, groceries, and
rent that was $400 a month, over a period of eight to nine months
prior to trial. He testified that he was “just following orders” and
that he was “sure” Pierpont knew about the payments; and in fact,
Pierpont told Mack to pay the Tovars’ rent.
¶49 Pierpont testified that he was the lead investigator of the
major case squad and was assigned by his supervisor, Captain
Warren Grossgebauer, to direct the investigation into Mrs. Olesen’s
murder and make assignments to others. He testified that either he
or Grossgebauer assigned Mack to provide extra patrols around the
Tovars’ residence and to take care of their needs. He recalled that
the police could have paid for the Tovars’ rent and groceries, but
that he did not remember ordering or intending this. Pierpont
further testified that the sole purpose in assigning Mack was “to
protect the Tovars.”
¶50 The State called Perla to testify. Although it chose not to
call Perla as a witness during the 1985 trial, the State called Perla at
the evidentiary hearing to present counterfactual evidence—
meaning evidence the State contends it would have offered at trial
if the suppressed impeachment evidence had been disclosed and
had damaged the Tovars’ credibility. During Perla’s hearing
testimony, counsel for the State asked Perla about the initial
statement Mack took from her. For example, counsel asked, “[D]o
you remember that you told Officer Mack [that] on . . . February
27th . . . [Carter] was at . . . Epifanio’s house and from there he left?”
Perla answered, “I don’t remember”—an answer she gave more
than one hundred times at the hearing. She testified that she was
“really scared” when interviewed by the police because “they—the
police came into my house with the gun looking for [Carter], and
the intimidation they’re going to take my kids away.” She
confirmed that she remembered telling Mack that she and Epifanio
drove to Wendover, and on the drive home he told her the “real
reason” Carter was leaving was because of “a lady that was dead.”
And she remembered that Epifanio told her what Carter said to him
about the murder on two occasions.
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The Postconviction Court’s Order
¶51 After the hearing, the postconviction court issued an order
granting Carter’s petition, which included the following findings
of fact and conclusions of law.
The Postconviction Court’s Factual Findings
¶52 The court found that at Pierpont’s direction, Mack paid the
Tovars over $4,000 in benefits in the months preceding Carter’s
trial. Further, the court found Pierpont’s claim that the payments
were only for the Tovars’ protection to be not credible. Rather, it
found the police paid the Tovars “to ensure their continued
availability and cooperation as trial witnesses,” which made them
“dependent upon and beholden to the police.” Watson knew of the
payments to the Tovars. But the State never disclosed the payments
to the defense.
¶53 Next, the court found that Mack threatened Lucia and
Epifanio with “arrest, deportation, and loss of their son . . . at least
three times,” and that Pierpont did so at least once. Mack told the
Tovars, “as long as you’re working with us, [deportation] was not
going to happen.” The court found that “[t]his was a threat that if
the Tovars stopped cooperating with the police, deportation would
ensue.” The State never disclosed to the defense that Mack and
Pierpont had made these statements to the Tovars.
¶54 Further, the court found that Pierpont and Mack
instructed the Tovars to give false testimony at trial, and that
neither the coaching nor the falsity of the testimony was disclosed
to Carter.
¶55 First, it found that “Mack instructed the Tovars to lie about
receiving financial benefits from the police if asked about the
benefits at trial.” Notably, Mack denied this at the evidentiary
hearing, but the court “[did] not find this testimony credible.”
Watson was present when these instructions were given. And the
court observed that both Watson and Pierpont—who both knew
that the Tovars had received significant financial assistance—were
present at trial, sitting at counsel table, when Epifanio lied about
the benefits, “not once, but five times.” The State did not disclose
to the defense that Mack had instructed Epifanio to lie, nor that
Epifanio’s testimony was false. Importantly, the court also found
that Watson did nothing to correct the false testimony at trial.
¶56 Second, the court found that “Pierpont instructed Epifanio
to testify falsely that Carter said he was going to ‘rape, break, and
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CARTER v. STATE
Opinion of the Court
drive’ before the murder.” Watson was at the pretrial meeting
when the phrase “came up.” However, the court found that Carter
failed to prove that Watson personally knew the phrase “rape,
break, and drive” was false. The court found it was “undisputed”
that Epifanio did lie to the jury when he testified that Carter made
the statement. And the State did not disclose to the defense that
Pierpont had coached Epifanio to testify falsely, nor that Epifanio’s
testimony was false.
The Postconviction Court’s Legal Conclusions
¶57 Based on these findings, the postconviction court
concluded that the State had violated Carter’s right to due process
at both the guilt and sentencing stages of his trial in numerous
ways. The court concluded that the State had violated Brady v.
Maryland, 373 U.S. 83 (1963), because it had suppressed evidence
favorable to Carter, which was material to both guilt and
punishment. See
id. at 87. Specifically, the court found that the State
suppressed evidence that: the police threatened the Tovars with
deportation, arrest, and separation from their son; the police paid
the Tovars approximately $4,000 for living expenses; Mack and
Pierpont coached the Tovars to deny receiving financial benefits;
and Pierpont coached Epifanio to testify falsely that Carter said he
was going to “rape, break, and drive,” before the murder.
¶58 In light of the fact that Epifanio succumbed to the coaching
and testified falsely, the court also determined that the State
violated Napue v. Illinois, 360 U.S. 264 (1959), because the prosecutor
did not correct Epifanio’s false testimony. With respect to
Epifanio’s testimony that he had received no benefits from the
police, the court concluded that Watson violated Napue because he
knew the testimony was false and did not correct it. With respect
to Epifanio’s “rape, break, and drive” testimony, the court imputed
Pierpont’s knowledge that the phrase was fabricated to Watson. On
this basis, the court concluded that Watson’s failure to clearly
correct the perjury was a second Napue violation.
¶59 Finally, the court concluded that these constitutional
violations prejudiced Carter—both under Brady and Napue’s
materiality standards, Brady, 373 U.S. at 87; Napue, 360 U.S. at 270–
72, and under the PCRA’s prejudice standards, UTAH CODE § 78B-
9-104(2)(a), (b).
¶60 With respect to the Brady violations, the court applied two
different materiality standards that were dependent on the type of
evidence suppressed. The court first considered whether Carter
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had shown that if the State would have properly disclosed the
threats and the payments, there was “a reasonable probability that
. . . the result of the trial would have been different.” The court
determined that these two pieces of impeachment evidence were
insufficient to create such a possibility.
¶61 But the court observed that the materiality of Brady
violations is not determined individually, but collectively. So it
then turned to the State’s failure to disclose the two instances of the
police coaching the Tovars to lie. The court applied the Napue
standard to these claims, stating that the “materiality of
undisclosed false testimony is presumed . . . [and] [t]he burden
then shifts to the State to show that the failure to disclose is
harmless beyond a reasonable doubt.” The court concluded that the
State had not met this burden, and therefore the suppressed
evidence was material under Brady.
¶62 And considering the first two violations in combination
with the undisclosed false testimony, the court concluded that “the
four failures to disclose proved by Carter undermine this Court’s
confidence in the verdict.” The court also ruled that these violations
prejudiced Carter in the sentencing phase.
¶63 The court then viewed the four violations under the
applicable PCRA prejudice standard. UTAH CODE § 78B-9-104(2)(a).
It referenced the analysis it had conducted under Brady, and ruled
that “for th[ose] reasons . . . had the State disclosed to Carter the
financial benefits paid on behalf of the Tovars, the police threats of
arrest, deportation, and separation, and the coaching of Epifanio’s
false testimony by police . . . there would have been a reasonable
probability of a different verdict in both the guilt phase and the
sentencing phase of Carter’s trial.” (Citing id.)
¶64 The court then analyzed the two Napue violations—
Watson’s failure to correct Epifanio’s denial that he had received
payments from the police and Epifanio’s claim that Carter said he
was going to “rape, break, and drive” before the murder. The court
concluded that, for the reasons it had given in its Brady analysis,
these violations were prejudicial under Napue and the applicable
PCRA standard because “the false testimony, in any reasonable
likelihood, could have affected the judgment of the factfinder.” Id.
§ 78B-9-104(2)(b).
¶65 The postconviction court granted Carter’s petition for
postconviction relief, vacated his conviction and death sentence,
and ordered a new trial. The State appeals.
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Opinion of the Court
¶66 We have jurisdiction under Utah Code subsection 78A-3-
102(3)(i).
STANDARD OF REVIEW
¶67 “On appeal from a ruling on a petition for post-conviction
relief, we review the post-conviction court’s legal conclusions for
correctness . . . [and its] factual findings for clear error.” Oseguera v.
State, 2014 UT 31, ¶ 9,
332 P.3d 963 (cleaned up).
ANALYSIS
¶68 Carter seeks relief under the PCRA, which 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). The PCRA contains
a list of “grounds for relief.” Id. § 78B-9-104. The one asserted by
Carter is that his “conviction was obtained or the sentence was
imposed in violation of the United States Constitution or Utah
Constitution.” Id. § 78B-9-104(1)(a). To obtain postconviction relief
on either of these bases, Carter must prove (1) a constitutional
violation, and (2) that, “in light of the facts proved in the
postconviction proceeding, viewed with the evidence and facts
introduced at trial or during sentencing,” id. § 78B-9-104(2), he
“suffered prejudice as a result of this constitutional error,” Arriaga
v. State, 2020 UT 37, ¶ 30,
469 P.3d 914 (citing UTAH CODE § 78B-9-
104(2)).
¶69 To prove the constitutional violations he has alleged,
Carter must satisfy the materiality requirements that are embedded
in Brady and Napue claims. Once he has done that, he must then
show that these constitutional violations prejudiced him under the
standards established in the PCRA. See UTAH CODE § 78B-9-104(2).
Fortunately, the PCRA’s prejudice standards harmonize with Brady
and Napue’s materiality standards.
¶70 We first review the postconviction court’s conclusion that,
in numerous instances, the State violated Carter’s constitutional
right to due process at trial. With one exception, the State does not
dispute the substance of the constitutional violations identified by
the postconviction court. Rather, the crux of the State’s appeal is
that the postconviction court erred in determining that these
constitutional violations prejudiced Carter under the applicable
caselaw and the PCRA. So we then analyze the court’s prejudice
determinations. We elucidate how to make a collective prejudice
determination when multiple Brady and Napue violations—which
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have different materiality standards—are at issue. And while we
find some analytical mistakes in the court’s analysis, we conclude
that the postconviction court’s ultimate determination that the
constitutional violations prejudiced Carter under the PCRA was
correct.
I. CONSTITUTIONAL VIOLATIONS
¶71 Carter asserts he has grounds for relief under the PCRA
because his “conviction was obtained” and his “sentence was
imposed in violation of the United States Constitution.” UTAH
CODE § 78B-9-104(1)(a). In his petition, Carter asserted two types of
constitutional violations, both implicating his right to due process
of law under the Fourteenth Amendment of the United States
Constitution. Carter claimed that the State violated Brady v.
Maryland, 373 U.S. 83 (1963), because it failed to disclose
impeachment evidence that was favorable to the defense. And he
asserted violations of Napue v. Illinois,
360 U.S. 264 (1959), because
the prosecutor knowingly failed to correct false testimony.
¶72 After the evidentiary hearing, the postconviction court
concluded that Carter had proven multiple due process violations.
A. Brady Violations
¶73 The court concluded that Carter had shown the State
violated Brady in obtaining his conviction and sentence. In Brady,
the United States Supreme Court held that “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.” 373 U.S. at 87. “To establish a Brady violation, a
defendant must show (1) that the prosecution suppressed
evidence, (2) that the evidence is favorable to the accused, and
(3) that the evidence is material to either guilt or to punishment.”
State v. Newton,
2020 UT 24, ¶ 37,
466 P.3d 135. We discuss and
apply the Brady materiality standard below. See infra ¶¶ 91–97, 136–
153.
¶74 The postconviction court found multiple instances of the
State suppressing evidence that was favorable to Carter.
¶75 It found that “the police had paid more than $4,000 in
financial benefits to or on behalf of the Tovars” before trial, and the
State did not disclose this to the defense. The court concluded the
payments rendered the Tovars “dependent upon and beholden to
the police,” and that this was impeachment evidence favorable to
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Opinion of the Court
Carter because the defense could have used it to argue that the
Tovars had a motive to testify falsely on behalf of the State.
¶76 Next, the court found that the police had threatened the
Tovars with arrest, deportation, and separation from their son, and
that the State did not disclose this to the defense. It concluded that
this was impeachment evidence favorable to Carter because he
could have used it to show that the Tovars had “a motive to
misrepresent or slant their testimony in ways favorable to the
State.”
¶77 Finally, the court found that Pierpont and Mack had
instructed the Tovars to lie at trial on two points. It found that Mack
coached the Tovars to deny they had received benefits from the
police if asked about it at trial. In response, Epifanio perjured
himself by claiming, repeatedly, that he and Lucia had received
nothing but $14 checks from the city for being witnesses.
Additionally, Pierpont instructed Epifanio to claim that Carter said
he was going to “rape, break, and drive” before the murder. And
Epifanio did falsely testify that Carter made this statement on the
night of the murder.
¶78 The court found that the State did not disclose the
coaching to the defense. And it concluded this was impeachment
evidence favorable to Carter because “the police interfered with the
truth-seeking function of the criminal justice process” and this
“call[ed] into question the integrity of the police investigators and
their investigation generally.”
¶79 The State does not dispute that this evidence was
suppressed, nor that it was favorable to Carter and should have
been disclosed under Brady. We agree with the postconviction
court that all the suppressed evidence could have been used to
impeach the credibility of important state witnesses—the Tovars,
Pierpont, and Mack. And generally, impeachment evidence is
“favorable to [the] accused” under Brady. 373 U.S. at 87; United
States v. Bagley,
473 U.S. 667, 676 (1985).
B. Napue Violations
¶80 The postconviction court also concluded that Carter had
established two due process violations under Napue, which applies
when a conviction is “obtained through use of false evidence,
known to be such by representatives of the State,” and also “when
the State, although not soliciting false evidence, allows it to go
uncorrected when it appears.”
360 U.S. at 269. This applies even
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where “the false testimony goes only to the credibility of the
witness.” Id. The Court explained that this was so because “[t]he
jury’s estimate of the truthfulness and reliability of a given witness
may well be determinative of guilt or innocence, and it is upon such
subtle factors as the possible interest of the witness in testifying
falsely that a defendant’s life or liberty may depend.”
Id. Indeed, in
Napue itself, the Court reversed a murder conviction because an
important government witness testified that “he had received no
promise of consideration in return for his testimony” when in fact
the prosecutor had made such a promise and “did nothing to
correct the witness’[s] false testimony.” Id. at 265.
¶81 To establish a Napue violation, Carter must show that “the
prosecution knowingly solicited false testimony or knowingly
allowed it to go uncorrected when it appeared,” and that the
testimony was material in that it “in any reasonable likelihood
could have affected the judgment of the jury.” Glossip v. Oklahoma,
145 S. Ct. 612, 626–27 (2025) (cleaned up). We discuss and apply the
Napue materiality standard below. See infra ¶¶ 90–99, 132–135.
¶82 The postconviction court concluded that the State violated
Napue when Watson: (1) failed to correct Epifanio’s false testimony
that he received only a $14 check for being a witness, and (2) failed
to correct Epifanio’s false testimony that Carter said he was going
to “rape, break, and drive” on the night of the murder.
¶83 The State does not challenge that Watson violated Napue
when he failed to correct Epifanio’s denial of receiving payments
from the police. But it disputes that Watson’s failure to correct
Epifanio’s “rape, break, and drive” testimony constituted a Napue
violation because the court found that Watson did not actually
know the testimony was false. Rather, the court concluded as a
legal matter that because Pierpont knew the testimony was false,
and Pierpont was a member of the “prosecution team, his
knowledge of false testimony is imputed to Watson, the
prosecutor.” The court reasoned that “[f]or purposes of Brady, a
police investigator’s knowledge of exculpatory evidence is
imputed to the prosecutor.” (Citing Tillman v. State, 2005 UT 56,
¶ 27,
128 P.3d 1123.) And the court saw “no reason why this same
principle should not apply when a police investigator coaches a
prosecution witness to testify falsely.”
¶84 The State argues that the prosecutor’s actual knowledge of
the falsity of the evidence is an essential element of a Napue claim.
(Citing Smith v. Sec’y of N.M. Dep’t of Corr.,
50 F.3d 801, 831 (10th
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CARTER v. STATE
Opinion of the Court
Cir. 1995) (concluding that a Napue violation was avoided because,
even though a state investigative employee was aware of false
testimony, the prosecution did not have actual knowledge of the
false testimony).) In the State’s view, a rule imputing a police
investigator’s knowledge of false testimony to the prosecutor
cannot apply to a Napue claim because that would require a
prosecutor to correct testimony that the prosecutor does not know
is false. Cf. Napue, 360 U.S. at 269–71.
¶85 The State contends that the postconviction court’s
extension of this rule from the Brady context to a Napue claim “made
new law.” See Kyles v. Whitley, 514 U.S. 419, 437–38 (1995) (holding
that under Brady, the duty to disclose favorable evidence is
implicated even if the evidence is known only to police
investigators and not the prosecutor). The State asserts that the
court’s rule contradicts at least three federal circuits, including the
Tenth Circuit Court of Appeals. (Citing Smith v. Massey,
235 F.3d
1259, 1272 (10th Cir. 2000) (“[T]his court and the Fifth Circuit have
refused to impute the knowledge of a law enforcement officer to
the prosecution where there has been an alleged Napue violation.”),
abrogated on other grounds by Neill v. Gibson,
278 F.3d 1044 (10th Cir.
2001).)
¶86 It appears that the question of whether, in a Napue claim,
the knowledge of a member of the prosecution team that testimony
is false should be imputed to the prosecutor has not been
specifically resolved by the U.S. Supreme Court. Cf. Briscoe v.
LaHue, 460 U.S. 325, 326 n.1 (1983) (“The Court has held that the
prosecutor’s knowing use of perjured testimony violates due
process, but has not held that the false testimony of a police officer
in itself violates constitutional rights.”). The question has caused a
split among several federal courts of appeal. See Massey,
235 F.3d at
1272 (discussing cases and determining that it would not impute
law enforcement agent’s knowledge that testimony was false to the
prosecutor).
¶87 We do not resolve this issue for ourselves here, however,
because it does not ultimately matter to the resolution of this
petition. The failure to disclose the falsity of Epifanio’s testimony
that Carter had a premeditated intent to “rape” on the night of the
murder is clearly a due process violation under Brady, at a
minimum. The only question is whether it constitutes a more
serious violation under Napue, and is therefore subject to the less
onerous Napue materiality standard. But as we will discuss, infra
¶¶ 128–130, 138–143, even if we consider this violation under the
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higher Brady materiality standard, the cumulative effect of the
violations is still prejudicial.
¶88 We now turn to the State’s primary argument that the
postconviction court’s prejudice analysis is legally flawed, and that
under the correct standards Carter has not shown prejudice.
II. PREJUDICE/MATERIALITY STANDARDS
¶89 The State contends that the postconviction court’s
prejudice determination was erroneous. Prejudice presents a legal
question that we review for correctness. See Arriaga v. State, 2020
UT 37, ¶ 31,
469 P.3d 914 (describing the prejudice standard under
the PCRA as “equivalent to the prejudice analysis courts use to
assess ineffective-assistance-of-counsel claims”); State v. Torres-Orellana,
2024 UT 46, ¶ 7,
562 P.3d 706 (confirming in the context of
an ineffective assistance claim that a prejudice determination is a
question of law reviewed for correctness).
¶90 We begin by articulating the materiality standards
applicable to Brady and Napue violations. We then discuss the
PCRA’s prejudice standards. And finally, we give guidance on
determining prejudice when multiple Brady and Napue violations
are at issue.
A. Materiality Standards Under Brady and Napue
¶91 The U.S. Supreme Court’s articulation of the materiality
standard for suppressed exculpatory evidence has developed over
time. In United States v. Agurs, the Court spoke broadly about “the
rule of Brady v. Maryland,” and observed that it “arguably applies
in three quite different situations,” each involving “the discovery,
after trial of information which had been known to the prosecution
but unknown to the defense.” 427 U.S. 97, 103 (1976).
¶92 The first situation the Court identified was where “the
undisclosed evidence demonstrates that the prosecution’s case
includes perjured testimony and that the prosecution knew, or
should have known, of the perjury.” Id. In such a situation, the
Court stated that it had “consistently held that a conviction
obtained by the knowing use of perjured testimony is
fundamentally unfair and must be set aside if there is any reasonable
likelihood that the false testimony could have affected the judgment of the
jury.”
Id. (cleaned up) (emphasis added). This is the Napue
standard.
Id. at 103 n.8 (citing Napue, among other cases).
¶93 Agurs then discussed two other scenarios differentiated by
whether and how specifically the defense had made a pretrial
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Opinion of the Court
request for exculpatory information. Id. at 104–07. While the details
are not relevant here, the Court concluded that different materiality
standards should apply where the defense made “a pretrial request
for specific evidence,” as opposed to no request or only a general
request.
Id. at 104.
¶94 Then, in United States v. Bagley, the Court streamlined the
materiality standards it had elucidated in Agurs. 473 U.S. 667, 678–
82 (1985) (opinion of Blackmun, J.);
id. at 685 (White, J., concurring
in part and concurring in the judgment). It first returned to the
circumstance of “the prosecutor’s knowing use of perjured
testimony or, equivalently, the prosecutor’s knowing failure to
disclose that testimony used to convict the defendant was false.”
Id.
at 678. The Court reiterated the “well-established rule that a
conviction obtained by the knowing use of perjured testimony is
fundamentally unfair[] and must be set aside if there is any
reasonable likelihood that the false testimony could have affected
the judgment of the jury.”
Id. (cleaned up). The Bagley Court noted
that this standard derived from Napue, and it likened the standard
to a harmlessness review of a constitutional error—in other words,
that the knowing use of perjured testimony “is considered material
unless failure to disclose it would be harmless beyond a reasonable
doubt.”3 473 U.S. at 679–80 & n.9. The Court left this standard
unchanged.
__________________________________________________________
3 In subsequent cases, the Court noted that in Bagley, it “treated
‘reasonable likelihood’ as synonymous with ‘reasonable
possibility’ and thus ha[s] equated materiality in the perjuredtestimony cases with a showing that suppression of the evidence
was not harmless beyond a reasonable doubt.” Strickler v. Greene,
527 U.S. 263, 298–99 (1999) (Souter, J., concurring in part) (citing
United States v. Bagley,
473 U.S. 667, 678–80 & n.9 (1985) (opinion of
Blackmun, J.)); see also Brecht v. Abrahamson,
507 U.S. 619, 637 (1993)
(defining the harmless-beyond-a-reasonable-doubt standard as no
“‘reasonable possibility’ that trial error contributed to the verdict”);
Chapman v. California,
386 U.S. 18, 24 (1967) (“There is little, if any,
difference between our statement . . . about whether there is a
reasonable possibility that the evidence complained of might have
contributed to the conviction and requiring the beneficiary of a
constitutional error to prove beyond a reasonable doubt that the
error complained of did not contribute to the verdict obtained.”
(cleaned up)).
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¶95 But the Court reconsidered the necessity of applying
different materiality standards based on whether the defense had
requested the information, or how specific such a request had been.
It concluded that a single prejudice standard was “sufficiently
flexible to cover all instances of prosecutorial failure to disclose
evidence favorable to the accused,” without regard to whether the
defense had made a specific request. Courts should simply
determine whether “there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding
would have been different.” Id. at 685 (White, J., concurring in part
and concurring in the judgment); id. at 682 (opinion of Blackmun,
J.) (cleaned up).4
¶96 Thus, due process violations that fall within the ambit of
Napue are material if there is “any reasonable likelihood that the
false testimony could have affected the judgment of the jury.”
Glossip v. Oklahoma, 145 S. Ct. 612, 626–27 (2025) (cleaned up)
(analyzing a Napue violation arising in a capital case); Bagley,
473
U.S. at 678 (opinion of Blackmun, J.). Napue covers a variety of
scenarios, but they all involve the presence of false evidence at trial,
which was known to the prosecutor, including “the prosecutor’s
knowing use of perjured testimony,” Bagley,
473 U.S. at 678
(opinion of Blackmun, J.), “the prosecutor’s knowing failure to
disclose that testimony used to convict the defendant was false,”
id., and instances where the prosecutor, “although not soliciting
__________________________________________________________
4 The section of Bagley that we discuss, Part III, was written by
Justice Blackmun and joined by Justice O’Connor. Bagley, 473 U.S.
at 678–84. Justice White, joined by Chief Justice Burger and Justice
Rehnquist, concurred in part and concurred in the judgment.
Id. at
685. As explained in his concurrence, Justice White’s divergence
from Part III was narrow. He agreed with Justice Blackmun that,
“for purposes of this inquiry, 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.”
Id. And he also agreed that the reasonable probability standard was
flexible enough “to cover all instances of prosecutorial failure to
disclose evidence favorable to the accused.”
Id. However, he
differed from Part III in that he “s[aw] no reason to attempt to
elaborate on the relevance to the inquiry of the specificity of the
defense’s request for disclosure.”
Id. He would have simply held
that the “proper standard is one of reasonable probability.”
Id.
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Opinion of the Court
false evidence, allows it to go uncorrected when it appears,” Napue
v. Illinois, 360 U.S. 264, 269 (1959).
¶97 And all other instances of “prosecutorial failure to disclose
evidence favorable to the accused” are subject to the streamlined
Brady materiality standard established in Bagley.
473 U.S. at 682
(opinion of Blackmun, J.). These Brady violations are 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.” Id.;
id. at 685 (White, J., concurring in part and
concurring in the judgment).
¶98 Notably, the Napue standard sets a lower bar for
petitioners than the Brady materiality standard. While Napue asks
whether the failure to correct false testimony “could . . . in any
reasonable likelihood have affected the judgment of the jury,” 360 U.S.
at 271 (emphasis added), Brady requires a showing that “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 (opinion of Blackmun, J.) (emphasis added);
id. at
685 (White, J., concurring in part and concurring in the judgment).
¶99 Napue’s lower materiality standard reflects the fact that
“[a] prosecutor’s knowing use of perjured testimony is misconduct
that goes beyond the denial of a fair trial, which is the focus of
Brady. It is misconduct that undermines fundamental expectations
for a ‘just’ criminal-justice system.” United States v. Garcia, 793 F.3d
1194, 1208 (10th Cir. 2015). While both Brady and Napue establish
violations of due process, the difference between the two is that “a
Brady claim is concerned primarily with disclosure of exculpatory
material to the defendant, whereas the essence of a [Napue] violation
is the lack of disclosure of the truth to the jury.” Young v. Comm’r of
Corr.,
294 A.3d 29, 44 (Conn. App. Ct. 2023) (cleaned up). As the
Supreme Court observed in Napue: “A lie is a lie, no matter what its
subject, and, if it is in any way relevant to the case, the [State’s]
attorney has the responsibility and duty to correct what he knows
to be false and elicit the truth.” 360 U.S. at 269–70 (cleaned up).
B. Materiality Standards Under the PCRA
¶100 Now that we have discussed the applicable materiality
standards under federal constitutional jurisprudence, we turn to
the PCRA’s prejudice standards. As the State correctly observes,
while a petitioner must satisfy the materiality standards in Brady
and Napue to make out those particular constitutional violations, in
order to obtain relief under the PCRA based on those constitutional
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violations, the petitioner must show that the violations were
prejudicial under the standards contained in the PCRA itself. Those
standards are found in subsections 2(a) and 2(b), which provide:
The court may not grant relief from a conviction or
sentence unless in light of the facts proved in the
postconviction proceeding, viewed with the evidence
and facts introduced at trial or during sentencing:
(a) the petitioner establishes that there would
be a reasonable likelihood of a more favorable
outcome; or
(b) if the petitioner challenges the conviction
or the sentence on grounds that the prosecutor
knowingly failed to correct false testimony at
trial or at sentencing, the petitioner establishes
that the false testimony, in any reasonable
likelihood, could have affected the judgment
of the fact finder.
UTAH CODE § 78B-9-104(2).
¶101 Thus, for Carter to obtain relief from his conviction or
sentence under the PCRA on the ground that his conviction and
sentence were obtained in violation of the constitution, he must
establish those constitutional violations under applicable law, and
then establish prejudice under subsection 104(2). Conveniently, the
PCRA’s prejudice standards mirror the materiality standards
found in Brady and Napue.
¶102 The prejudice standard established in subsection 2(a) is
equivalent to the Brady materiality standard. See Carter v. State, 2019
UT 12, ¶ 55,
439 P.3d 616 (explaining that “the materiality standard
under Brady is the same materiality standard contained in the
PCRA”); see also Arriaga,
2020 UT 37, ¶ 31 n.37 (explaining that by
employing “term of art” legal tests, the PCRA incorporates the
“accompanying well-developed body of . . . jurisprudence”).
Accordingly, when petitioners establish materiality under Brady,
they have also established prejudice under subsection 2(a) of the
PCRA. See Carter,
2019 UT 12, ¶ 55.
¶103 Similarly, subsection 2(b) aligns with the Napue
materiality standard. Like Napue, subsection 2(b) applies where a
postconviction petitioner “challenges the conviction or the sentence
on grounds that the prosecutor knowingly failed to correct false
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testimony at trial or at sentencing.”5 UTAH CODE § 78B-9-104(2)(b).
In such cases, the petitioner demonstrates prejudice under the
PCRA by proving “that the false testimony, in any reasonable
likelihood, could have affected the judgment of the fact finder.” Id.
And, as with Brady and subsection 2(a), when petitioners challenge
their conviction “on grounds that the prosecutor knowingly failed
to correct false testimony at trial or at sentencing,” and they
establish prejudice under Napue’s materiality standard, they have
also established prejudice under subsection 2(b) of the PCRA.
C. Making a Collective Prejudice Determination When Both
Brady and Napue Claims Are at Issue
¶104 Where, as here, multiple violations of Brady or Napue are
at issue, “materiality . . . must be evaluated in the context of the
entire record.” Tillman v. State, 2005 UT 56, ¶ 32,
128 P.3d 1123. This
means that although 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.”
Carter,
2019 UT 12, ¶ 53 (quoting Kyles v. Whitley,
514 U.S. 419, 436
& n.10 (1995)).
¶105 Determining the collective weight of the suppressed
Brady evidence and the false Napue evidence is complicated by the
fact that Brady and Napue claims involve different prejudice
standards. The Ninth Circuit Court of Appeals has observed the
tension courts face in determining which standard to apply when
faced with a combination of Brady and Napue claims:
Although we must analyze Brady and Napue
violations “collectively,” the difference in the
materiality standards poses an analytical challenge.
The Napue and Brady errors cannot all be collectively
analyzed under Napue’s “reasonable likelihood”
__________________________________________________________
5 We note that the language of subsection 2(b) does not
comprehensively track all of the scenarios in which a Napue
violation might arise. See supra ¶¶ 80–81. It is not clear whether this
means that the subsection 2(b) prejudice standard should be
limited to only a slice of potential Napue claims, or if the language
effectively includes instances where a prosecutor knowingly uses
or fails to disclose false evidence at trial, since, in doing so, it may
be said that they also failed to correct the false evidence. This
question is not before us now. We simply make this observation, as
it may arise in another case.
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standard, as that would overweight the Brady
violations. On the other hand, they cannot be
considered in two separate groups, as that would fail
to capture their combined effect on our confidence in
the jury’s decision.
Jackson v. Brown, 513 F.3d 1057, 1076 (9th Cir. 2008).
¶106 We have not addressed how to determine prejudice in
such a situation. But several other courts have. See, e.g., id.; Juniper
v. Davis, 74 F.4th 196, 212 (4th Cir. 2023); United States v. Vozzella,
124 F.3d 389, 392 (2d Cir. 1997). Under the approach of these
jurisdictions, courts first “consider the Napue violations
collectively” under the Napue standard, and if they “are not
material standing alone,” then, second, the courts “consider all of
the Napue and Brady violations collectively” under the Brady
standard. Jackson,
513 F.3d at 1076; see also Juniper,
74 F.4th at 213
(utilizing a similar two-step process).
¶107 We adopt this approach, with the caveat that a reviewing
court is free to proceed directly to considering all of the mixed
violations under the more-demanding Brady standard if that is
preferable in a given case.
¶108 We now analyze the State’s argument that the
postconviction court erred in its determination that Carter was
prejudiced at trial and sentencing by the State’s Brady and Napue
violations.
III. PREJUDICE AT CARTER’S TRIAL AND SENTENCING
¶109 The State’s primary argument is that the postconviction
court erred in its prejudice determination because it applied two
different materiality standards to the four Brady violations at issue
here, based on the type of evidence that was suppressed. It
contends that one materiality standard applies to all Brady claims.
And it argues that the court’s use of the wrong Brady standard
tainted its entire prejudice analysis—including its analysis under
Napue and the PCRA—and resulted in impermissibly shifting the
burden to the State to prove harmlessness. The State asserts that
under the correct standards, Carter did not prove that any Brady or
Napue violation prejudiced him at the guilt or sentencing phases of
his case.
¶110 In conducting its prejudice analysis, the postconviction
court first considered the prejudice caused by the four Brady nondisclosure violations it had discerned: (1) failure to disclose that the
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police paid the Tovars approximately $4,000 in living expenses
prior to trial; (2) failure to disclose that the police threatened the
Tovars with deportation, separation from their son, and arrest;
(3) failure to disclose that police coached Epifanio to falsely deny
he had received any benefits; and (4) failure to disclose that
Pierpont had coached Epifanio to say that Carter said he was going
to “rape, break, and drive” before the murder.
¶111 The State is correct that in analyzing the materiality of the
Brady violations, the postconviction court used two different
materiality standards “depending on the type of evidence
suppressed.” With respect to the first two violations—the State’s
failure to disclose the payments and the threats—the court applied
the Brady standard, concluding that they were material if there was
“a reasonable probability that if the evidence had been disclosed
the result of the trial would have been different.” But with respect
to the State’s failure to disclose the two instances of the police
coaching the Tovars to lie, the court applied an equivalent to the
Napue materiality standard. It concluded that “[i]f the prosecutor
knowingly fails to disclose that testimony used to convict the
defendant is false, ‘the fact that testimony is perjured is considered
material unless failure to disclose it would be harmless beyond a
reasonable doubt.’” (Quoting United States v. Bagley, 473 U.S. 667,
680 (1985) (opinion of Blackmun, J.).) It explained further that “the
materiality of undisclosed coached testimony is presumed” and
“[t]he burden then shifts to the State to show that the failure to
disclose is harmless beyond a reasonable doubt.”
¶112 Considering the suppression of the payments and threats
under the Brady standard, the court determined that these two
pieces of impeachment evidence were insufficient to create a
“reasonable possibility that if the evidence had been disclosed the
result of the trial would have been different.” The court reasoned:
At the evidentiary hearing, the Tovars testified about
the financial benefits and threats, but nevertheless
stood by their testimony that Carter had returned to
their home and confessed to murdering the victim.
The Tovars do not claim to have lied because of the
financial benefits paid to them or because of the
threats of arrest, deportation, and separation from
their son. Moreover, the jury was aware that the
Tovars were not legal residents of the United States.
And Carter’s defense lawyer argued to the jury that
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Epifanio was not a citizen and was “desperate about
staying in this country.”
¶113 But the court observed that the materiality of Brady
violations is not determined individually, but collectively. So it
then turned to the State’s failure to disclose the two instances of the
police coaching the Tovars to lie. It applied the harmless-beyonda-reasonable-doubt standard to these claims, because,
Both Watson and Lieutenant Pierpont knew that
Epifanio’s testimony about only receiving a $14 check
from the City was false. Lieutenant Pierpont knew
that Epifanio’s testimony about “rape, break and
drive” was false, and his knowledge is imputed to
Watson. The State knowingly failed to disclose that
the testimony was false and coached by police.
Carter’s conviction was secured—at least in part—on
the basis of this false testimony. Therefore, the
materiality of these non-disclosures is presumed and
the burden shifts to the State to show that the failures
to disclose were “harmless beyond a reasonable
doubt.”
¶114 The court concluded that the State had not met this
burden. It explained that the prejudice caused by the suppression
of this evidence
must be evaluated in light of the fact that no physical
evidence tied Carter to the crime scene. The State’s
case rested on the confession, and the Tovars’
corroborating testimony. Carter’s theory was that
Epifanio was lying and that Carter’s confession was
coerced by unscrupulous police officers. In this
context the failure to disclose that Epifanio lied about
material facts under oath during trial and that he did
so at the direction of the police was prejudicial to
Carter’s defense.
¶115 The court observed that the suppressed evidence would
have damaged the Tovars’ credibility, which was crucial to the
State’s case. The court reasoned that, because there was no physical
evidence tying Carter to the crime scene, “[t]he Tovars provided
critical testimony about Carter’s whereabouts before and after the
murder.” The court noted that “Epifanio alone testified about what
Carter admitted to him immediately after the murder.” And “the
Tovars described for the jury Carter’s demonstration of what he
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had done.” The court also weighed the fact that the Tovars’
testimony “corroborated Carter’s oral and dictated confession to
Lieutenant Pierpont.” The court found their testimony to be
“central to the State’s case against Carter.”
¶116 The court also noted that the suppressed evidence would
have made the defense strategy of “attack[ing] Epifanio as a false
witness” much more compelling. On cross-examination, defense
counsel focused on Epifanio’s “admitted lie about the location of
the gun.” And the court observed how much more powerful this
defense strategy would have been if the jury would have been told
that “contrary to his claim to have only lied one time (i.e. about the
gun)—Epifanio had lied multiple times right there on the witness
stand, under oath and before the jury, about facts material to his
own bias and Carter’s stated intent prior to the murder.”
¶117 Additionally, the court weighed the fact that the jury
would have learned that it was Pierpont who directed Epifanio to
lie. And “[t]his would have undermined the integrity of both the
police investigators and their investigation generally.”
¶118 The court reasoned that the damage to Pierpont’s
credibility would have affected the jury’s consideration of Carter’s
confession. Pierpont was the only person to witness Carter’s
confession, and he was the one to testify about it at trial. The court
concluded that the suppressed evidence “would certainly have
called into question Lieutenant Pierpont’s testimony about Carter’s
unrecorded oral confession, and the somewhat inconsistent written
confession Lieutenant Pierpont dictated in his own words for
Carter to sign.”
¶119 In light of all this, the postconviction court concluded that
the State “ha[d] not shown that its failure to disclose Epifanio’s
coached false testimony would have been ‘harmless beyond a
reasonable doubt.’”
¶120 The court then considered the first two violations in
combination with the undisclosed false testimony, and it concluded
that “the four failures to disclose proved by Carter undermine [the]
Court’s confidence in the verdict.”
¶121 The court then analyzed whether the Brady violations
prejudiced Carter in the sentencing phase. It concluded that they
had.
¶122 The court focused on the undisclosed evidence that
Pierpont had directed Epifanio to falsely claim that Carter intended
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to “rape, break, and drive” on the night of the murder. It pointed
to the fact that at the 1992 resentencing, the prosecutor “relied
heavily upon the statement in seeking the death sentence.” During
the State’s closing argument, the prosecutor asked the jury to
“[c]onsider the intent of the Defendant. . . . He said why he was
going out that night. He wanted money, 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.” Then, in rebuttal,
the prosecutor argued that the murder was “not in retaliation to
[Carter’s wife] or anyone else. He decided to go out and ‘rape and
. . . break and drive.’”
¶123 The postconviction court concluded that “[e]vidence that
Carter, shortly before the murder, expressed a wanton desire to
rape someone, break someone or something, and flee may well
have persuaded the jury that Carter was so culpable and dangerous
as to require imposition of the death penalty.” It concluded that the
State had “failed to prove that its failure to disclose this false
testimony was harmless beyond a reasonable doubt.”
¶124 The court then viewed the four violations under the
PCRA subsection 2(a) standard. UTAH CODE § 78B-9-104(2)(a). It
concluded that, “[f]or the reasons stated above . . . had the State
disclosed to Carter the financial benefits paid on behalf of the
Tovars, the police threats of arrest, deportation, and separation,
and the coaching of Epifanio’s false testimony by police . . . there
would have been a reasonable probability of a different verdict in
both the guilt phase and the sentencing phase of Carter’s trial.”
¶125 Next, the court analyzed whether the two Napue
violations prejudiced Carter under Napue and the PCRA standard
found in subsection 2(b). It concluded that “for the reasons stated”
in its Brady analysis, Watson’s failure to correct Epifanio’s false
testimony that he had not received payments from the police and
that Carter intended to “rape, break, and drive” before the murder
“could have affected the judgment of the jury in the guilt phase of
the trial.” And “for the reasons stated” in its Brady analysis, the
“rape, break, and drive” testimony “could have affected the
judgment of the jury in the penalty phase.” Thus, the court
concluded that these violations were prejudicial under Napue and
subsection 2(b).
¶126 The State argues that the court erred in its prejudice
analysis when it applied the wrong prejudice standard to the
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suppressed evidence of coaching and shifted the burden to the
State to show those violations were harmless beyond a reasonable
doubt. We agree. However, we conclude that the court was correct
in its final determination that all the Brady and Napue errors,
considered together, prejudiced Carter at the guilt and sentencing
phases under the PCRA.
¶127 To begin, we agree with the State that under the PCRA,
the burden to show prejudice rests with Carter. Both subsection
2(a), the general PCRA prejudice standard, and subsection 2(b), the
standard that applies when “the petitioner challenges the
conviction or the sentence on grounds that the prosecutor
knowingly failed to correct false testimony,” make clear that a court
may not grant relief unless “the petitioner establishes” prejudice
under the applicable standard. UTAH CODE § 78B-9-104(2)(a), (b)
(emphasis added).
¶128 We also agree that the court’s application of the less
onerous Napue standard6 to the suppressed evidence of coaching
was incorrect. This seems to have stemmed from the court’s
consideration of both the evidence that Mack and Pierpont coached
the Tovars to lie and the evidence of Epifanio’s false testimony
when determining whether these two Brady violations were
material. The State correctly points out that “[t]he Brady evidence
Carter claimed wasn’t disclosed was that pretrial, the police
coached Epifanio to say that he only received $14 and to say ‘rape,
break and drive.’ The Brady claims would still fall under the normal
Brady . . . prejudice standard. . . . Once Epifanio testified falsely
about those things, they then became Napue claims analyzed under
its less-stringent prejudice standard.”
¶129 We agree with this, with one exception. Whether the
materiality of Epifanio’s false testimony about Carter’s
premeditated intent to rape is measured under the Napue standard
depends on whether the prosecutor knew or should have known
the evidence was false. United States v. Agurs, 427 U.S. 97, 103
__________________________________________________________
6 The “harmless beyond a reasonable doubt” standard has been
described as equivalent to the Napue standard—i.e., whether there
is “any reasonable likelihood that the false testimony could have
affected the jury’s verdict.” United States v. Bagley,
473 U.S. 667, 679
n.9 (1985) (opinion of Blackmun, J.). However, for the sake of
consistency, we will use the articulation of the Napue standard that
appears in subsection 2(b).
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(1976). And in this case, that depends on whether Pierpont’s
knowledge should be imputed to Watson. See supra ¶¶ 81–85. As
stated above, we do not resolve that legal question here because it
does not impact the outcome of this case. Thus, for purposes of this
appeal, we will apply the Brady standard to the suppressed
evidence of Epifanio’s false testimony about Carter’s intent to rape
on the night of the murder.
¶130 Accordingly, only the prejudicial effect of Epifanio’s false
testimony that he received no financial benefits from the police
should be considered under the Napue / subsection 2(b) standard.
The remaining undisclosed evidence should be weighed under the
Brady / subsection 2(a) standard. This includes the evidence that:
(1) the police threatened the Tovars, (2) the police paid the Tovars
over $4,000 in living expenses in the months leading up to trial,
(3) Mack directed the Tovars to lie about the payments, (4) Pierpont
directed Epifanio to falsely attribute to Carter a premeditated intent
to rape someone on the night of the murder, and (5) Epifanio
acceded to the coaching and falsely claimed that Carter said he was
going to “rape, break, and drive” on the night of the murder.
¶131 With that established, we consider the State’s argument
that under the correct standards, Carter has not shown that the
combined Napue and Brady violations prejudiced him. This
determination requires considering the prejudicial effect of
multiple violations under two different standards. We will first
consider the effect of Epifanio’s false denial of receiving payments
under the less demanding Napue / subsection 2(b) standard. If it is
prejudicial on its own, then the analysis is at an end. If it is not, then
we will consider all the violations, including the Napue violation,
under the higher Brady / subsection 2(a) standard.
Napue / subsection 2(b)
¶132 To determine whether a Napue claim is material, we ask
whether “the false testimony could . . . in any reasonable likelihood
have affected the judgment of the jury.” Napue v. Illinois, 360 U.S.
264, 271 (1959); see also UTAH CODE § 78B-9-104(2)(b).
¶133 The only Napue violation at issue is Watson’s knowing
failure to correct Epifanio’s false testimony that he and Lucia
received nothing more than $14 checks from the City. At trial,
defense counsel cross-examined Epifanio on whether he or his
family received “money or support” or “any kind of aid” from the
police or prosecutor’s office. Epifanio testified that he and his wife
had each received a $14 check, and he affirmed four more times that
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Opinion of the Court
they received no other benefits. Watson knew this was false
because he was aware that the Tovars were receiving financial
benefits such as money, a “deposit on [an] apartment,” and a
“deposit on [a] phone.” So Watson “knowingly failed” to correct
Epifanio’s false testimony.
¶134 If the jury would have known the truth, that the police
paid the Tovars’ living expenses during the months before trial, it
could have led to fruitful cross-examination by the defense that
would have diminished the Tovars’ credibility. More importantly,
if the jury knew that Epifanio lied under oath about this fact, it
would have been highly damaging to his credibility. On the other
hand, we also consider the postconviction court’s finding that
Epifanio was a credible witness at the evidentiary hearing. And at
that hearing, he testified that the financial benefits did not cause
him to lie, and that he told the truth about Carter coming to his
home and confessing to murdering a woman.
¶135 Assuming, arguendo, that this single Napue violation was
insufficient to “in any reasonable likelihood have affected the
judgment of the jury,” Napue, 360 U.S. at 271; see also UTAH CODE
§ 78B-9-104(2)(b), when viewed with the remaining violations
cumulatively under the Brady / subsection 2(a) standard, we agree
with the postconviction court that the violations were material.
Brady / subsection 2(a)
¶136 To determine whether a Brady claim is material, we ask
whether “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 (opinion of Blackmun,
J.);
id. at 685 (White, J., concurring in part and concurring in the
judgment). The general prejudice standard under the PCRA is
substantively similar, requiring the petitioner to establish “that
there would be a reasonable likelihood of a more favorable
outcome.” UTAH CODE § 78B-9-104(2)(a).
¶137 Although part of the postconviction court’s Brady analysis
utilized the wrong materiality standard, the substance of its
analysis was comprehensive, careful, and based upon extensive
and detailed factual findings that were the product of its firsthand
observation of the evidentiary hearing. See supra ¶¶ 109–126.
¶138 First, we agree with the postconviction court that the
violations clearly prejudiced Carter at sentencing. The
postconviction court focused on the fact that the prosecutor in the
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1992 resentencing argued in closing that Carter had a premeditated
intent to “rape” and to “hurt someone,” and that “[h]e went in there
intending to do violence.” But that evidence was false, the result of
Pierpont’s coaching. Epifanio testified at the evidentiary hearing
that Carter actually told him he was going to “break into a car and
steal from the car.”
¶139 This was material to sentencing. The jury was falsely told
that on the night of the murder, Carter intentionally sought out a
victim with an intent to rape, hurt, and do violence to her. In reality,
he told Epifanio that he was going to go break into a car.
¶140 The State argues that the nondisclosure of this coached,
false testimony did not prejudice Carter at sentencing, because
many other aggravating factors were before the jury. And it asserts
that Carter’s confession and the crime scene demonstrated that at
some point, Carter had contemplated raping Mrs. Olesen but
decided against it because she was menstruating.
¶141 We agree with the State that the murder of Mrs. Olesen
was especially brutal and heinous, and that the crime scene
suggested that the assailant contemplated sexually assaulting her
at some point. However, the premeditated intent of a defendant
convicted of murder is extremely important at sentencing. If the
State had disclosed that Epifanio lied when he claimed that Carter
left his home with an intent to rape—and not only that, but that the
lead investigator had coached him to say so, we must conclude that
there would have been a reasonable likelihood of a more favorable
outcome at the sentencing phase of Carter’s trial.
¶142 Next, with respect to whether the numerous due process
violations cumulatively prejudiced Carter at the guilt phase of his
trial, we ultimately agree with the postconviction court that they
did. The State argues that none of the suppressed evidence or false
testimony mattered, because Carter was convicted based on his
“incontrovertible and . . . unchallengeable confession and its
consistency with the evidence.” Along the same lines, the State
contends that any damage the evidence would have done to the
Tovars’ credibility “wouldn’t have mattered” because their
testimony “was merely corroboration of Carter’s confession,” and
at the evidentiary hearing, they stood by their trial testimony about
what Carter “told and showed them he had done.” Finally, the
State points to the counterfactual evidence it could have offered at
the 1985 trial if Epifanio’s credibility became too damaged—Perla’s
testimony about Epifanio’s statements to her on the drive back
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from Wendover, which mirrored his trial testimony and were made
before he had any incentive or pressure to fabricate.
¶143 We agree with the substance of the postconviction court’s
analysis of the impact that the undisclosed threats, payments,
coaching, and false testimony had on Carter’s trial. When viewed
under the Brady / subsection 2(a) standard, we conclude that there
is a reasonable probability that, had the evidence been disclosed to
the defense, the result of the proceeding would have been different.
¶144 The court correctly observed that because no physical
evidence tied Carter to the crime scene, his confession and the
Tovars’ corroboration of his confession were the pillars of the
State’s case. And the undisclosed evidence damages both pillars.
¶145 We first discuss Carter’s confession. After Carter was
arrested in Tennessee, Pierpont traveled there to interrogate him.
But before he did, Tennessee officers interrogated Carter for
approximately two hours one day and four hours the next. During
this time, Carter made no admissions. However, upon Pierpont’s
arrival, he claimed to have obtained an oral confession from Carter
within thirty minutes. But Pierpont did not record the
interrogation. Instead, he dictated a summary of the confession and
had his summary transcribed onto a one-page form, which Carter
signed.
¶146 Thus, Carter’s confession was introduced at trial through
Pierpont, who was the only one to witness Carter’s initial oral
confession. Pierpont was the lead investigator, and he sat with
Watson at counsel table throughout the trial. The defense’s theory
was that Carter’s confession was coerced by unscrupulous police
officers. If it had been disclosed that Pierpont coached Epifanio to
lie about Carter’s intent before the murder, pressured the Tovars
with threats of deportation and separation from their son, and
knew Epifanio had been coached to lie about receiving payments
from the police, this would have given the defense powerful
material to use against Pierpont on cross-examination and it would
have seriously damaged Pierpont’s credibility. While the State is
correct that this does not renew questions about the confession’s
admissibility as an evidentiary matter, the point here is that the jury
likely would have given the confession less weight based on
Pierpont’s tarnished credibility and his demonstrated willingness
to manufacture evidence against Carter in order to secure a
conviction.
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¶147 With respect to the Tovars, and especially Epifanio, we
agree with the postconviction court that their testimony was central
to the State’s case. They saw Carter before and after the murder.
And Epifanio’s testimony about Carter’s statements and
demonstration of the murder provided important corroboration of
Carter’s confession. The defense strategy was to paint Epifanio as a
false witness. If the Brady and Napue evidence were disclosed—the
threats, the payments, the coaching, and Epifanio’s false
testimony—the defense could have shown that Epifanio did, in
fact, perjure himself under oath at trial. And they could have
developed his motive for doing so—fear of deportation, arrest, and
separation from his family, as well as financial dependence on the
police. At the evidentiary hearing, Epifanio testified that Pierpont
was trying to get him to say things that were not true by pressuring
him with references to the death penalty and claiming “that they
had witnesses against [him].” He explained: “I was afraid and
that’s why I lied, because . . . if they didn’t catch the guy, they
would arrest me as the murderer.” With Epifanio’s credibility
damaged, the corroborative force of his testimony would have been
diminished.
¶148 Lucia’s testimony at the evidentiary hearing suggests that
her testimony may have been swayed by the threats and payments.
Although Lucia affirmed the core substance of her trial testimony,
it became evident that some of her trial testimony had been
exaggerated, and some was not based on her firsthand knowledge.
At the hearing, she took back some of the detail she had provided
in her trial testimony.
¶149 At trial, Lucia testified that Carter was “laughing and
giggling” while demonstrating the murder, and that he “laid
himself to the floor showing us exactly how he had forced this
individual to lay down, and then he put his hands behind his back.”
But at the evidentiary hearing, she stated that she did not have any
idea what Carter was demonstrating, nor did she know that Carter
was demonstrating something he had done to another person.
¶150 At trial, Lucia testified to overhearing parts of the English
conversation between her husband and Carter, testifying that
Carter told Epifanio what he had done, declaring, “‘I swear by my
mother that that is true. . . . [W]atch the news.’” But at the
evidentiary hearing, she testified that she did not understand
anything that Carter said to her husband because “[t]hey were
speaking in English.”
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¶151 The State argues that if the credibility of Pierpont and the
Tovars had been damaged, the State would have called Perla at the
1985 trial. And her testimony about what Epifanio told her on the
drive back from Wendover would have buttressed Epifanio’s
testimony and the authenticity of Carter’s confession. While Perla
was a recalcitrant, biased, and forgetful witness at the evidentiary
hearing, this may not have been the case had the State called her as
a witness in 1985. We will assume for purposes of this appeal that
she would have been at least as effective as she was at the
preliminary hearing.
¶152 The question is, would her testimony have been enough
to stem the damage done to Pierpont’s and Epifanio’s credibility?
Again, we must consider the cumulative impact of all the
undisclosed and false evidence. The evidence of the threats,
payments, and Mack’s coaching of the Tovars to deny the
payments, would have damaged Mack’s credibility and provided
grounds to impeach Lucia. But most importantly, the disclosure of
Pierpont’s and Mack’s willingness to coach important prosecution
witnesses to lie—driven home by the fact that Epifanio did perjure
himself—would not have just diminished Pierpont’s and Mack’s
credibility. It would have called into question the entire police
investigation. As the postconviction court articulated it, these
disclosures “would have undermined the integrity of both the
police investigators and their investigation generally.”
¶153 For these reasons, we agree with the postconviction court
that in light of the facts proved in the postconviction proceeding,
viewed with the evidence and facts introduced at trial and
sentencing, Carter has established that if the Brady and Napue
evidence had been disclosed, “there would be a reasonable
likelihood of a more favorable outcome.” UTAH CODE § 78B-9-
104(2)(a).
CONCLUSION
¶154 The constitutional violations that took place during
Carter’s trial and resentencing are serious. It is rare to see a case
involving multiple instances of intentional misconduct by two
different police officers—one of them the lead investigator on the
case—and a prosecutor. But that is what the postconviction court
found here. Two officers instructed important prosecution
witnesses to lie not only about receiving benefits from the police,
but also, in Epifanio’s case, to fabricate a statement intended to
show that Carter harbored a premeditated intent to commit rape
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Opinion of the Court
on the night of the murder. Epifanio went along with the coaching
and perjured himself repeatedly. And the prosecutor stood by
while Epifanio denied receiving any benefits, knowing the
testimony was false, and did nothing to correct it. The
postconviction court granted Carter’s petition, vacated his
conviction and sentence, and ordered a new trial because it
determined these violations prejudiced Carter within the meaning
of the PCRA. Its “confidence [was] undermined in both Carter’s
conviction and sentence.” So is ours.
¶155 We affirm.
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