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SALT LAKE CITY — Death row inmate Douglas Stewart Carter's conviction and death sentence should be upheld based on the strength of his own confession, which has been upheld in previous challenges, according to prosecutors for the state.
Even if the jury had known about the Provo Police Department paying the rent of the state's two key witnesses at Carter's original trial, it would not discredit the strength of their testimonies, a new court filing from state prosecutors argues. In fact, the witnesses received help from police as part of the department's witness protection program because they were in fear of retaliation from Carter.
Carter, 66, was convicted of aggravated murder, a capital offense, in 1985 for the killing of Eva Olesen, 57, who was stabbed multiple times and shot during a home invasion robbery on Feb. 27, 1985, at her Provo home.
Much of Carter's conviction was based on the testimonies of his friends, Epifanio and Lucia Tovar, who testified that Carter had bragged to them about the murder right after it happened, as well as a written confession from Carter that he later claimed was coerced.
He appealed his sentence in 1992, but another jury upheld the death penalty. By that time, however, the Tovars had disappeared and did not testify at Carter's resentencing.
Then in 2011, Carter's defense attorneys successfully tracked down the Tovars in Mexico. At that time, they claimed that they lied on the witness stand during the original trial and were pressured by police to testify against Carter. They claimed police paid for their rent and threatened to deport their son if they did not testify against him.
The Utah Supreme Court called such claims from the state's star witnesses "damning revelations" in 2019, and ordered that Carter receive a new evidence hearing in 4th District Court.
That hearing was held in November. In January, Carter's defense team submitted a post-hearing brief to the court asking for either a new trial or new sentencing hearing. On Thursday, the Utah Attorney General's Office submitted a lengthy 212-page response to Carter's petition for a new trial.
Carter's defense team claims the Tovars were paid thousands of dollars by Provo police for their testimony, including paying their rent and other living expenses. But the state argued that the payments were for witness protection, and that the Tovars truthfully told police about the crime before they received any compensation at all.
"Although the core of Carter's current claims centers on alleged payments police gave to the Tovars, the Tovars gave these statements and details about the murder before they received any alleged assistance or witness protection," according to the response filed by the attorney general's office.
The prosecutors noted that during the evidentiary hearing, a retired Provo police captain testified that in 1985, "it was common for the Provo Police Department to offer protection to witnesses or 'anybody who felt that they were in jeopardy.'" They said the Tovars were in fear of Carter, and even if the payments provided by police had been raised at trial, it would not have changed the outcome.
"Had all of the facts been put before the jury, the jury would have had no reason at all to doubt Carter's guilt and death-worthiness given the totality of the evidence. Carter's unchallengeable confession and the Tovars' consistent and truthful corroboration of that confession — and their admissions that their testimony about Carter's confession and demonstration to them were true — entirely mitigate any unease a jury might have about the Tovars' testimony," the state's court filing states.
The state contends that the Tovars were afraid of Carter, "so much so that the police were protecting them from him."
"Indeed, evidence of financial assistance, if disclosed, would have backfired by illustrating that the Tovars needed police protection from Carter. And any taint to Epifanio's credibility, had the prosecutor corrected his allegedly false testimony, would have been vastly outweighed by the fact that Epifanio, Lucia, Perla (LaCayo, friend of Carter), and Carter himself all agreed on the same basic fact: that Carter murdered Eva. No reasonable juror, even doubting the Tovars' credibility, would have disregarded Carter's confession and acquitted him.
"It is simply unquestionable now that Epifanio and Lucia both persistently and repeatedly expressed fear of Carter to anyone who would listen. ... And many of those expressions of fear predated any payments," according to the state prosecutors.
Prosecutors also deny that police ever threatened the Tavors to coerce testimony from them.
"What Epifanio and Lucia characterize as direct threats by police were likely their own natural fears — as they remember it over 30 years later," the state responded.
The state also noted that during the evidentiary hearing, Wayne Watson, the prosecutor at Carter's original trial, stated that Carter's defense team did know about the payments.
Carter's defense team is also alleging that Epifanio Tovar lied when he testified on the witness stand during the original trial that Carter told him his intent on the night of the murder was to "rape, break and drive."
But even if that phrase wasn't actually used and had prosecutors corrected him on the stand, the state says it still wouldn't have been enough to change the jury's verdict.
"He has never recanted his trial testimony about Carter's confession, even many decades after any state-sponsored incentive to lie has evaporated. That testimony tracks Epifanio's and Lucia's pre-payment statements, Carter's confession, and the crime scene," according to the state's response. "Given Carter's confession and the many aggravating factors other than the Tovars' testimony, there is no reasonable likelihood that any false testimony by Epifanio could have affected the jury's judgment at sentencing or that had any allegedly suppressed, favorable evidence been disclosed, Carter would not have been sentenced to death.
"Carter's confession, which has been challenged unsuccessfully several times over the decades, is beyond review and insurmountable. It corroborated details that Epifanio and Lucia gave to police before they claim to have received any assistance, which they have never recanted," according to the state's brief.
Given the length of the state's response, Carter's attorneys have requested that the court allow him until April 19 to file his reply.
