Tillman v. State

2005 UT 56
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
ElRoy Tillman, No. 20030148
Plaintiff and Appellee,
v.
F I L E D
State of Utah,
Defendant and Appellant. August 30, 2005
---
Third District, Salt Lake
The Honorable Leslie A. Lewis
No. 010908894
Attorneys: Loni F. DeLand, Michael R. Sikora, McCaye
Christianson, Salt Lake City, for plaintiff
Mark Shurtleff, Att’y Gen., Erin Riley, Thomas
Brunker, Asst. Att’ys Gen., Salt Lake City, for
defendant
---
DURRANT, Justice:
¶1 In 1983, following a jury trial, ElRoy Tillman was
convicted of capital murder and sentenced to death. After he
exhausted all avenues of relief under state and federal law ,
Tillman was scheduled to be executed. However, shortly before
his execution date, Tillman discovered that the State had failed
to disclose transcripts of two interviews it had conducted with
the key prosecution witness prior to trial. Citing those
transcripts, Tillman filed a petition for post-conviction relief
with the district court. Although the court rejected Tillman’s
assertion that the undisclosed evidence was sufficient to warrant
a reversal of his conviction, the court nevertheless agreed that
he was entitled to relief with respect to his sentence of death.
As a result, the district court vacated Tillman’s sentence and
ordered a new sentencing proceeding.
¶2 The State challenges the district court’s ruling,
arguing that Tillman’s petition is procedurally barred under
Utah’s Post-Conviction Remedies Act or, alternatively, that the

1 Tillman first directly appealed his conviction, which we
affirmed in State v. Tillman, 750 P.2d 546 (Utah 1987). Tillman
then filed a state petition for habeas corpus relief, which the
(continued...)
No. 20030148 2
suppression of the transcripts did not violate Tillman’s due
process rights. Because we agree with the district court that
Tillman’s petition is not procedurally barred and that the
suppression of the transcripts violated his due process rights,
we affirm.
BACKGROUND
¶3 On May 26, 1982, Mark Schoenfeld was found dead in his
Salt Lake City apartment. Police arrested Tillman for the murder
based on information provided by Lori Groneman, a former
girlfriend of Tillman who was dating Schoenfeld at the time of
his death. Police also arrested Carla Sagers, Tillman’s
girlfriend at the time of the murder.
¶4 Sagers initially confirmed the alibi Tillman had given
to the police. However, in exchange for full immunity, Sagers
recanted that confirmation. Sagers became the State’s key
witness at trial, testifying that on the night of May 25, 1982,
she and Tillman entered Schoenfeld’s home, where they found
Schoenfeld asleep in his bed. According to Sagers’s testimony,
Tillman bludgeoned Schoenfeld twice in the head with an ax and
then set the bed on fire while Schoenfeld was still alive. Due
to the lack of forensic evidence linking Tillman to the crime
scene, Sagers’s testimony was unquestionably the most critical
evidence the State presented at trial. In fact, as noted by
Justice Stewart, “[t]he only direct evidence of Tillman’s
involvement in the crime, indeed the only evidence of his
involvement at all came from the testimony of Carla Sagers.”
Tillman v. Cook, 855 P.2d 211, 228 (Stewart, J., dissenting).
The jury no doubt relied heavily upon Sagers’s testimony in
finding Tillman guilty of first-degree murder. Because the jury
returned a guilty verdict, the trial court initiated a separate
sentencing proceeding, at which the trial jury considered
aggravating and mitigating circumstances bearing on the
appropriateness of the death penalty. See Utah Code Ann. § 76-3-
207 (Supp. 1982) (current version at Utah Code Ann. § 76-3-207
(2003)). After considering all the evidence, the jury
unanimously agreed to impose the death penalty. The trial judge
subsequently sentenced Tillman to death.
¶5 After Tillman exhausted all avenues of state and
federal relief in the years following his conviction,1 his

1 (...continued)
district court denied. We affirmed that denial in Cook, 855 P.2d
211. After a petition for federal habeas relief was dismissed
for failure to fully exhaust state remedies, Tillman filed a
second petition for state habeas relief directly with this court,
which we dismissed as procedurally barred. Tillman then filed a
second petition for federal habeas relief, which the federal
district court denied. Tillman v. Cook, 25 F. Supp. 2d 1245 (D.
Utah 1998). The United States Court of Appeals for the Tenth
Circuit affirmed the district court’s denial, Tillman v. Cook,
215 F.3d 1116 (10th Cir. 2000), and the United States Supreme
Court denied Tillman’s petition for certiorari on December 11,
2000, Tillman v. Cook, 531 U.S. 1055 (2000).
2 In its brief, the State suggests that one of the
interviews evidenced by the partial transcripts could have been
the first polygraph interview Lieutenant Bill Robinson conducted
with Sagers shortly after Schoenfeld’s murder in May 1982.
However, the district court found that the interviews in question
were those conducted by Sgt. Thirsk, and the State has failed to
challenge that finding as clearly erroneous. Therefore, we
accept the district court’s finding that the two transcripts
contain portions of the interviews of Sagers conducted by Sgt.
Thirsk. See State v. Widdison, 2001 UT 60, ¶ 60, 28 P.3d 1278
(noting that a party who wishes to challenge a factual finding
must first marshal the evidence in support of the finding and
then show why the marshaled evidence fails to support the
finding).
3 The tapes from which the interviews with Sagers were
transcribed have never been provided to the defense.
3 No. 20030148
execution date was set for June 24, 2001. On May 5, 2001,
Tillman filed a petition for commutation before the Utah Board of
Pardons and Parole. In connection with that petition, Tillman
requested reports that the State had created when it administered
polygraph examinations to Sagers prior to trial. In response,
the State provided defense counsel with two uncertified, undated,
typed partial transcripts of pre- or post-polygraph interviews
that Sergeant Kenneth Thirsk had conducted with Sagers in early
December 1982 and January 1983, shortly before Tillman’s trial
began on January 4, 1983.2 Although the transcripts were found
in one of the prosecution’s case files, neither transcript had
been previously disclosed to defense counsel.3 In fact, at
trial, the State introduced testimony that no recordings of the
interviews were ever made.
¶6 Following the disclosure of the transcripts, the

4 Tillman also argued that he was entitled to a reduced
sentence of life imprisonment because the prosecutor improperly
injected religion into his closing argument during the penalty
phase of trial. The district court dismissed this argument as
procedurally barred, and it is not before us on appeal.
No. 20030148 4
parties stipulated to a stay of Tillman’s execution date and
Tillman filed a petition for post-conviction relief with the
district court. In his petition, Tillman argued that the State’s
failure to disclose the partial transcripts violated his right to
due process under Brady v. Maryland, 373 U.S. 83 (1963), and its
progeny, which recognize that prosecutors have a constitutional
duty to disclose all material evidence that is favorable to a
defendant. Because of that violation, Tillman argued that he was
entitled to a new trial, or alternatively, to a reduced sentence
of life imprisonment.4
¶7 The district court agreed with Tillman in part. In an
articulate and well-reasoned opinion, the district court began by
rejecting the contention that Tillman’s claim was procedurally
barred by Utah’s Post-Conviction Remedies Act, which provides
that “[a] person is not eligible for relief . . . upon any ground
that . . . could have been, but was not, raised in a previous
request for post-conviction relief.” Utah Code Ann. § 78-35a-
106(d) (1999). Although the State asserted that defense counsel
could have discovered the undisclosed partial transcripts by
subpoenaing the prosecutor’s files in preparation for Tillman’s
prior appeals and post-conviction petitions, the district court
reasoned that “[i]t belie[d] common sense to suggest that the
defense could have discovered th[e] evidence when the polygrapher
and the State affirmatively denied the existence of the same.”
Consequently, the court concluded that Tillman had demonstrated
by a preponderance of the evidence that his claim could not have
been previously raised and that it was, therefore, not
procedurally barred.
¶8 The district court further ruled that the State’s
failure to disclose the transcripts violated Tillman’s rights
under the Due Process Clause of the Fourteenth Amendment.
Applying the Brady test, the court first reasoned that the
suppressed evidence was favorable to the defense because the
transcripts contained previously unknown information that could
have been used to impeach Sagers’s testimony at trial. Although
the district court acknowledged that the information contained in
the partial transcripts was, “for the most part, the same
information that was used during trial to attack [Sagers’s]
truthfulness,” the court noted that the transcripts contained
other non-cumulative impeachment evidence favorable to Tillman.

5 No. 20030148
Specifically, the court observed that (1) Sgt. Thirsk displayed a
great deal more disbelief and incredulity at Sagers’s account of
the murder in the transcripts than he displayed at trial, (2)
some of Sgt. Thirsk’s statements and questions in the transcripts
gave the appearance that he was coaching Sagers into giving more
believable testimony, and (3) the partial transcripts contained
over sixty notations indicating that Sagers had laughed while
being questioned about the murder. The district court concluded
that the impeachment value of this information was favorable to
Tillman and therefore satisfied the first component of the Brady
test.
¶9 The court also determined that the second component of
the Brady test was satisfied because the undisclosed evidence was
suppressed by the State. Although it was unclear who made the
recordings and had them transcribed, the court concluded that,
under the circumstances, the interviews must have been recorded
by someone affiliated with either law enforcement or the
prosecution. As a result, the district court reasoned that the
prosecutors either knew or should have known of the existence of
the transcripts, and that they therefore either knowingly or
inadvertently suppressed the evidence by failing to disclose it
prior to trial.
¶10 Addressing Brady’s final component, the district court
concluded that the State’s failure to disclose the partial
transcripts prior to trial prejudiced Tillman. The court was
“unconvinced that a different outcome of the guilt phase of the
trial would have resulted even if the additional impeachment
evidence had been known and utilized by defense counsel.”
Nevertheless, the court was persuaded that the probability of
prejudice resulting from the undisclosed partial transcripts was
sufficiently high to undermine the court’s confidence in the
death sentence imposed during the penalty phase of Tillman’s
trial.
¶11 In reaching this conclusion, the court focused on what
it identified as the inherent relationship between Sagers’s
credibility and her moral culpability for Schoenfeld’s murder.
The court reasoned that “the less credible [Sagers’s] testimony
was shown to be, the more likely her degree of moral culpability
for the homicide would have risen in the minds of the jurors,”
and that “the greater her degree of moral culpability, the less
likely jurors would have voted to impose a sentence of death upon
[Tillman].” The court noted that, in order to impose the death
penalty, jurors must unanimously agree that the totality of
aggravating evidence outweighs, beyond a reasonable doubt, the
totality of mitigating evidence. The court believed that the

5 As an initial matter, we observe that Tillman has
included various extra-record material in his appellate brief and
accompanying addendum. Because our review is limited to only
those materials contained in the record, see Wilderness Bldg.
Sys., Inc. v. Chapman, 699 P.2d 766, 768 (Utah 1985), we
disregard any improperly included materials.
No. 20030148 6
mitigating evidence calling Sagers’s moral culpability into
question probably would have altered, in Tillman’s favor, at
least one juror’s assessment of the aggravating and mitigating
factors. Therefore, the court concluded there was a reasonable
probability that disclosure of the partial transcripts would have
resulted in a different outcome during the penalty phase of
Tillman’s trial.
¶12 After determining that Tillman had met his burden by
establishing all three Brady components, the district court ruled
that the State’s failure to disclose the partial transcripts
violated Tillman’s due process rights. Consequently, the court
vacated Tillman’s sentence and ordered a new sentencing
proceeding. The State filed a timely notice of appeal.
¶13 On appeal, the State argues that the district court
erred in vacating Tillman’s sentence for two reasons. First, it
argues that Tillman has failed to prove that he could not have
raised his current Brady claim in either of his two previous
state post-conviction petitions for relief. As a result, the
State contends that Tillman’s current petition for post-
conviction relief is procedurally barred. Second, and
alternatively, the State argues that its failure to disclose the
partial transcripts does not constitute a Brady violation because
Tillman cannot establish that he was prejudiced by the
nondisclosure. We have jurisdiction to review the district
court’s decision pursuant to Utah Code section 78-2-2(3)(i)
(2002).
STANDARD OF REVIEW
¶14 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. Julian v. State, 2002 UT 61, ¶ 8, 52 P.3d 1168.
ANALYSIS5
I. TILLMAN’S POST-CONVICTION PETITION IS NOT PROCEDURALLY BARRED
BY UTAH’S POST-CONVICTION REMEDIES ACT

6 Utah Code Ann. §§ 78-35a-101 to -304 (2002 & Supp. 2004).
7 No. 20030148
¶15 Before addressing whether the State’s failure to
disclose the partial transcripts violated Tillman’s due process
rights, we first turn to the State’s contention that Tillman
should be procedurally barred from asserting his Brady claim in
this petition for post-conviction relief.
¶16 Utah’s Post-Conviction Remedies Act6 (“PCRA”) provides,
in relevant part, that a person who has been convicted and
sentenced for a criminal offense may file a post-conviction
petition requesting that the court modify or vacate either the
conviction or sentence on the ground that “the conviction was
obtained or the sentence was imposed in violation of the United
States Constitution or Utah Constitution.” Utah Code Ann. § 78-
35a-104(1)(a) (2002). However, no relief may be granted upon any
ground that “was raised or addressed in any previous request for
post-conviction relief or could have been, but was not, raised in
a previous request for post-conviction relief.” Id. § 78-35a-
106(1)(d) (emphasis added). The State has the burden of pleading
preclusion. Id. § 78-35a-105. Once it has done so, the
petitioner must disprove preclusion by a preponderance of the
evidence. Id.
¶17 In this case, the State has raised a procedural bar
defense; therefore, Tillman has the burden to prove that his
current Brady claim could not have been raised in either of his
previous state petitions for post-conviction relief. The State
argues that Tillman has failed to meet this burden. It asserts
that, prior to filing Tillman’s two previous state petitions for
post-conviction relief, reasonably diligent post-conviction
counsel would have reviewed the prosecution’s open files to
determine if there were any issues that trial or appellate
counsel had overlooked. According to the State, such a review
would have uncovered the partial transcripts and enabled Tillman
to bring a Brady claim in an earlier post-conviction petition.
Because Tillman’s post-conviction counsel admittedly did not
review the files following Tillman’s trial, the State argues that
Tillman cannot meet his burden in establishing that his Brady
claim survives the procedural bar.
¶18 Tillman counters that due diligence does not require a
defendant to continually reexamine prosecution files for
previously hidden or undisclosed exculpatory or impeachment
evidence. Tillman states that this is especially true in this
case, where the State explicitly represented at trial that no
recordings of the pre- or post-polygraph interviews, the
transcripts of which form the basis of his current claim, were

No. 20030148 8
made. Given this representation and the State’s ongoing duty to
disclose favorable material evidence, Tillman argues that he
located the transcripts as soon as he reasonably could have done
so.
¶19 In support of their respective arguments, both parties
rely on federal case law relating to federal post-conviction
preclusion. However, we need not delve into federal
jurisprudence, as we can decide the issue based on existing Utah
law.
¶20 Like the PCRA, Utah common law prohibits a petitioner
from raising a post-conviction claim relating to the denial of a
constitutional right when the claim could have been raised in a
prior post-conviction proceeding. See Hurst v. Cook, 777 P.2d
1029, 1033 (Utah 1989) (citing Utah R. Civ. P. 65B(i)(4)).
However, we have consistently recognized exceptions to this
general rule in “unusual circumstances” where “good cause”
excuses a petitioner’s failure to raise the claim earlier. See
id. at 1037. Currently, rule 65C of the Utah Rules of Civil
Procedure maintains this exception, providing that “[a]dditional
claims relating to the legality of [a] conviction or sentence may
not be raised in subsequent [post-conviction] proceedings except
for good cause shown.” Utah R. Civ. P. 65C(c).
¶21 When evaluating a post-conviction claim for good cause,
courts should generally decline to review a contention of error
where the error “is something which is known or should have been
known to the party,” and therefore could have been raised at an
earlier time. Brown v. Turner, 440 P.2d 968, 969 (Utah 1968).
“Nevertheless, howsoever desirable it may be to adhere to the
rules, the law should not be so blind and unreasoning that where
an injustice has resulted the victim should be without remedy.”
Martinez v. Smith, 602 P.2d 700, 702 (Utah 1979); see also Hurst,
777 P.2d at 1036 (“[I]t has long been our law[] that a procedural
default is not always determinative of a collateral attack on a
conviction where it is alleged that the trial was not conducted
within the bounds of basic fairness or in harmony with
constitutional standards.”). Thus, even where an issue could
have been raised in a previous post-conviction petition, post-
conviction review may be available in those “rare cases,”
Martinez, 602 P.2d at 702, or “unusual circumstances” where “an
obvious injustice or a substantial and prejudicial denial of a
constitutional right has occurred” that would make it
“unconscionable” not to reexamine the issue, Hurst, 777 P.2d at
1035; cf. Andrews v. Shulsen, 773 P.2d 832, 833 (Utah 1988)
(declining to review a petition for post-conviction relief where
the petitioner failed to show good cause for not raising the

9 No. 20030148
claim of constitutional error in a previous post-conviction
petition).
¶22 In Hurst, we identified five good cause factors
sufficient to justify the filing of a successive claim not raised
in a prior post-conviction petition. Those factors include
(1) the denial of a constitutional right
pursuant to new law that is, or might be,
retroactive[;] (2) new facts not previously
known which would show the denial of a
constitutional right or might change the
outcome of the trial[;] (3) the existence of
fundamental unfairness in a conviction[;] (4)
the illegality of a sentence[;] or (5) a
claim overlooked in good faith with no intent
to delay or abuse the writ.
777 P.2d at 1037 (citations and footnote omitted). We later
clarified, in Candelario v. Cook, 789 P.2d 710, 712 (Utah 1990),
that Hurst’s list of “good cause” factors is not exhaustive.
Nevertheless, the PCRA has codified only the first two of the
five “good cause” factors identified in Hurst. Gardner v.
Galetka, 2004 UT 42, ¶ 14, 94 P.3d 263. However, because “the
power to review post-conviction petitions ‘quintessentially . . .
belongs to the judicial branch of government,’” id. at ¶ 17
(quoting Hurst, 777 P.2d at 1033), and not the legislature, all
five common law exceptions “retain their independent
constitutional significance and may be examined by this court in
our review of post-conviction petitions,” id. at ¶ 15.
¶23 In this case, we conclude that Tillman has demonstrated
“good cause,” warranting review of his current post-conviction
petition on the merits. For even if we were to agree with the
State that Tillman technically could have filed his current Brady
claims in one of his previous petitions for post-conviction
relief had his appellate counsel examined the prosecution’s
files, we remain unconvinced that, under the circumstances,
Tillman should have done so.
¶24 The State admittedly failed to disclose to defense
counsel prior to trial either the partial transcripts or the
audio recordings from which those transcripts were made. The
State compounded this failure when it allowed Sgt. Thirsk to
testify during trial, without contradiction, that his
conversations with Sagers were not recorded. The prosecutor
himself later stated that he was unaware that recordings of the
interviews had been made. Consequently, Tillman had no reason to

No. 20030148 10
believe that there were undisclosed transcripts until the State
revealed their existence some nineteen years later--after the
audio recordings and, possibly, the complete interview
transcripts were lost or destroyed.
¶25 Under these circumstances, we are persuaded that
Tillman’s Brady claim was overlooked in good faith with no intent
to delay or abuse the post-conviction process. We therefore hold
that Tillman has demonstrated sufficient “good cause” to justify
examining his petition for post-conviction relief on the merits.
¶26 Having determined that the claims raised in Tillman’s
post-conviction petition are not procedurally barred, we turn our
analysis to whether the State’s failure to disclose the partial
transcripts violated Tillman’s rights under the Due Process
Clause of the Fourteenth Amendment.
II. THE STATE’S FAILURE TO DISCLOSE THE PARTIAL TRANSCRIPTS
VIOLATED TILLMAN’S RIGHT TO DUE PROCESS
¶27 In Brady v. Maryland, 373 U.S. 83 (1963), the United
States Supreme Court held that “the suppression by the
prosecution of evidence favorable to an accused . . . violates
due process where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of the
prosecution.” Id. at 87. The Court later clarified that the
duty to disclose favorable evidence encompasses both exculpatory
and impeachment evidence. United States v. Bagley, 473 U.S. 667,
676 (1985). The duty to disclose favorable evidence is
implicated even if the evidence is known only to police
investigators and not the prosecutor, Kyles v. Whitley, 514 U.S.
419, 438 (1995), and regardless of whether the evidence has been
requested by the accused, United States v. Agurs, 427 U.S. 97,
107 (1976).
¶28 In Strickler v. Greene, 527 U.S. 263 (1999), the Court
identified the following three components of a Brady
prosecutorial misconduct claim: (1) the evidence at issue is
“favorable to the accused, either because it is exculpatory, or
because it is impeaching”; (2) the evidence was “suppressed by
the State, either willfully or inadvertently”; and (3) prejudice
ensued. Id. at 281-82. On appeal, the State concedes that the
first and second Brady requirements have been satisfied in this
case. Consequently, the only remaining issue is whether Tillman
suffered prejudice as a result of the State’s failure to disclose
the partial transcripts.
¶29 For evidence to be prejudicial for Brady purposes, it

7 To avoid confusing the “reasonable probability” standard
with the more demanding “more likely than not” standard, Justice
Souter has advised courts to view “reasonable probability” as
more akin to a “significant possibility” of a different result.
See Strickler, 527 U.S. at 297-300 (Souter, J., concurring and
dissenting).
11 No. 20030148
must be material. See id. at 282-83. Evidence is material if
“‘there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have
been different.’” Kyles, 514 U.S. at 433 (quoting Bagley, 473
U.S. at 682). A reasonable probability of a different result
occurs “when the government’s evidentiary suppression ‘undermines
confidence in the outcome of the trial.’” Id. at 434 (quoting
Bagley, 473 U.S. at 678).7
¶30 In weighing whether evidence is “material” for Brady
purposes, three principles deserve special emphasis. First, when
determining whether a “reasonable probability” of a different
result exists, “the question is not whether the defendant would
more likely than not have received a different [result] with the
evidence,” but rather, “whether in its absence [the defendant]
received a fair trial, understood as a trial resulting in a
verdict worthy of confidence.” Id.
¶31 Second, “materiality . . . is not a sufficiency of the
evidence test,” id., and, therefore, “not just a matter of
determining whether, after discounting the inculpatory evidence
in light of the undisclosed evidence, the remaining evidence is
sufficient to support the jury’s conclusions,” Strickler, 527
U.S. at 290. To establish materiality, a defendant need only
show “that the favorable evidence could reasonably be taken to
put the whole case in such a different light as to undermine
confidence in the verdict” or sentence. Kyles, 514 U.S. at 435.
¶32 Third, the materiality of suppressed evidence must be
evaluated in the context of the entire record. Agurs, 427 U.S.
at 112. Although a court may “evaluate the tendency and force of
the undisclosed evidence item by item,” it is the cumulative or
collective effect of the evidence that is weighed when
determining whether the disclosure would have created a
reasonable probability of a different result. Kyles, 514 U.S. at
436 & n.10.
¶33 Applying the aforementioned principles to this case,
the district court concluded that the undisclosed partial
transcripts were “material,” as Brady contemplates that term, to
the sentencing phase of Tillman’s trial. In reaching this

No. 20030148 12
conclusion, the district court determined that the transcripts
provided non-cumulative impeachment evidence in the following
three ways: (1) the transcripts suggested that Sgt. Thirsk
disbelieved Sagers’s account of the murder to a much greater
degree than he testified to at trial; (2) the transcripts gave
the appearance that Sgt. Thirsk had coached Sagers into giving
more believable testimony; and (3) the transcripts contained
numerous notations of laughter on the part of Sagers, suggesting
inappropriate levity. The district court reasoned that this
evidence would have undermined Sagers’s credibility, thereby
elevating her own degree of moral culpability for the murder and
correspondingly diminishing the likelihood that jurors would have
voted to impose the death penalty on Tillman.
¶34 The State challenges the district court’s ruling on
several grounds. First, it argues that the evidence in the
transcripts reflecting Sgt. Thirsk’s disbelief and the appearance
of coaching is cumulative to other evidence available at trial,
and that, even if the evidence was not cumulative, it would
ultimately have been damaging to Tillman had it been presented at
trial. Second, the State argues that the notations of Sagers’s
laughter in the transcripts likely reflected a nervous reaction
to being interrogated, and that even if the transcripts reflected
inappropriate levity, such levity would have had no correlation
to Sagers’s credibility. Finally, the State argues that none of
the evidence contained in the partial transcripts impacts
Sagers’s moral culpability and that, even if it did, her moral
culpability would have been irrelevant during the sentencing
proceedings. As a result, the State contends that the absence of
the undisclosed transcripts at trial does not undermine
confidence in Tillman’s death sentence.
¶35 Although we address each of these arguments below, we
begin our analysis by first examining Tillman’s assertion on
appeal that the undisclosed transcripts contain additional non-
cumulative impeachment evidence that the district court failed to
identify. We then return to an examination of the district
court’s ruling and the alleged errors the State identifies
therein.
A. Additional Evidence in the Undisclosed Partial Transcripts
that Tillman Claims Is Non-Cumulative
¶36 In its opinion, the district court concluded that,
aside from the three areas expressly identified in its ruling,
the information contained in the partial transcripts relevant to
Sagers’s credibility was cumulative to information used to attack
her truthfulness during trial. Tillman challenges this

8 Prior to trial, Tillman was apparently provided with
three transcripts in which Sagers made numerous statements to
prosecutors and police, as well as a transcript of the testimony
Sagers gave at the preliminary hearing. Only the preliminary
hearing transcript is contained in the record on appeal.
Consequently, while Tillman has attached the three remaining
transcripts in the addendum to his appellate brief, we do not
rely on them for purposes of our analysis.
13 No. 20030148
conclusion. He asserts that the suppressed transcripts contain
admissions and statements that were not made at trial or in any
of the evidence provided to the defense before trial,8 and that
the information contained in the suppressed transcripts would
have proved valuable in his attempt to impeach Sagers.
¶37 We agree with the district court that many of the
statements Tillman identifies as non-cumulative are, in fact,
cumulative of other impeachment evidence available at trial and,
thus, do not constitute material evidence for Brady purposes.
Nevertheless, as we explain below, we agree with Tillman that the
transcripts provide additional important non-cumulative evidence
in two respects. We first address the evidence that the district
court correctly concluded was cumulative and then address the
additional evidence that we deem non-cumulative.
1. Cumulative Evidence
¶38 According to Tillman, the suppressed transcripts
contain evidence incorrectly classified by the district court as
cumulative. The evidence identified by Tillman relates to four
categories: (1) Sagers’s confusion as to her location at the
time Schoenfeld was struck, (2) the increased specificity in
Sagers’s trial testimony when compared with her testimony in the
suppressed transcripts, (3) Sagers’s role in the decision to set
Schoenfeld’s bed on fire, and (4) the absence of descriptions of
Tillman as “revengeful” in the suppressed transcripts. We
address each of these categories in turn.
a. Sagers’s location at the time Schoenfeld was struck
¶39 Tillman first focuses on Sagers’s admission in the
transcripts that she may have been present in the bedroom when
one of blows to Schoenfeld was struck. Specifically, in response
to Sgt. Thirsk’s suggestion that she was inside the room when
Tillman hit Schoenfeld, Sagers responded that “I was on my way
out. I turned around, I was on my way out. . . . I could of
[sic] been in and I could of [sic] been out.” Tillman argues

No. 20030148 14
that this statement could have been used to rebut Sagers’s
testimony in previous statements and at trial wherein she denied
being in the room when the blows were struck.
¶40 Although we acknowledge that this statement could have
been used to impeach Sagers’s account of the murder at trial, we
agree with the State that it was merely cumulative of other
evidence presented at trial. As previously noted, the failure to
disclose evidence does not, in all instances, result in a
constitutional violation. See Bagley, 473 U.S. at 678; see also
United States v. Quintanilla, 193 F.3d 1139, 1149 (10th Cir.
1999) (concluding that no Brady violation occurred where a
defendant already knew of evidence contained in an undisclosed
report prior to trial); United States v. Davis, 787 F.2d 1501,
1505 (11th Cir. 1986) (concluding that no Brady violation
occurred where the prosecution failed to disclose discrepancies
between the grand jury and trial testimony of various government
witnesses because the witnesses were exhaustively cross-examined
as to those discrepancies at trial).
¶41 In this case, Tillman elicited testimony from Sgt.
Thirsk at trial that Sagers had both admitted to and denied being
in the bedroom at the time the blows were struck:
Q. Was there any question and any answer
from [Sagers] in connection with whether
or not she was in the room at the time
of Mark Schoenfeld’s death?
A. Yes, her response to me was that she had
been in the room, in the bedroom but as
to where it was at the exact time of
death, there was no conversation
regarding the time of death, but at the
time blows were struck, that was the
essence of the conversation.
Q. Had she indicated to you previously that
she had not been in the room at the time
the blows were struck?
A. Yes, she had told me previously she had
not.
Because disclosure of the transcripts would not have augmented
this testimony in any meaningful way, we conclude that the
evidence contained in the suppressed transcripts illustrating
Sagers’s confusion as to her presence in Schoenfeld’s room at the

9 Because the transcripts are not dated, it is unclear
whether the partial transcript upon which Tillman relies was from
Sagers’s interview in December 1982, approximately four weeks
before Tillman’s trial began, or from her interview in January
1983, just days before trial.
15 No. 20030148
time the blows were struck is cumulative and not material for
purposes of Brady.
b. Increased specificity in Sagers’s trial testimony
¶42 Tillman next points to what he identifies as a
differing level of specificity between Sagers’s account in the
suppressed transcripts and her testimony at trial when explaining
how she assisted Tillman in covering Schoenfeld’s head during the
murder. In particular, he argues that Sagers stated in the
transcripts that during the murder, Tillman asked for a “thing”
or “something” for an unspecified reason, but at trial, she
testified clearly that Tillman asked her to hand him an article
of clothing lying on the floor, which he placed over Schoenfeld’s
head, presumably to prevent blood from splattering on the walls
when he struck the second blow. Tillman argues that if the
partial transcripts had been disclosed prior to trial, he could
have used the information contained therein to point out the
“sudden improvement” in Sagers’s memory in the short time before
the trial.9
¶43 The problem with Tillman’s argument is that the
suppressed transcripts do not evidence a discrepancy in the level
of specificity between Sagers’s statements in the partial
transcript and her trial testimony about Tillman’s request for an
item to place over Schoenfeld’s head. Although Tillman is
correct in his observation that Sagers stated in the transcripts
only that Tillman asked her to hand him a “thing” or “something,”
both her preliminary hearing and trial testimony contain
similarly vague descriptions.
¶44 For example, during the preliminary hearing, Sagers
stated twice that Tillman requested she hand him “a shirt or
something” that was lying on the floor. Additionally, she
testified that when she and Tillman later burned a towel, which
had been used to wipe down the walls of Schoenfeld’s bedroom,
they also burned the “shirt” or “whatever it was” that had been
placed over Schoenfeld’s head. Perhaps most importantly, at
trial, Sagers testified that Tillman asked her “to hand him
something . . . something laying on the floor, a piece of
clothing.” In this context, the fact that in the suppressed
transcripts Sagers described handing Tillman a “thing” or

10 In her preliminary hearing testimony, Sagers stated that
she did not turn Tillman in to authorities because he was a
“repentful” person. Tillman acknowledges that the word
“repentful” may actually have been “revengeful” and that the
court reporter may have mistyped the word. If such a
transcription error occurred, Tillman’s argument that Sagers
characterized Tillman as “revengeful” for the first time at trial
would clearly lack merit. However, even if the transcript is
accurate, it only further illustrates that Tillman had evidence
in his possession prior to trial that could have been used to
impeach Sagers’s trial testimony that she refrained from
contacting police due to her fear of Tillman’s “revengefulness.”
As the suppressed transcripts contain no additional evidence that
(continued...)
No. 20030148 16
“something” would have provided no additional impeachment
evidence at trial and therefore the district court correctly
concluded that such evidence was cumulative and non-material for
Brady purposes.
c. Lack of testimony referring to Tillman as “revengeful”
¶45 Tillman next argues that the partial transcripts
provide valuable non-cumulative evidence because of what they do
not contain. At trial, Sagers explained her involvement in the
murder by testifying that Tillman was “revengeful” and by
expressing her concern that Tillman might “do something to [her]”
if she went to the police or otherwise attempted to thwart the
murder plot. Tillman asserts that in the suppressed transcripts,
“as in her four other transcribed pre-trial statements, Sagers
does not explain her complicity in the murder as resulting from
her knowledge of Tillman’s ‘revengefulness.’” (Emphasis added.)
He argues that the “revengefulness” aspect of Sagers’s testimony
offered critical support to the prosecution’s argument for the
death penalty because it allowed the State to portray Tillman as
a threat not just to Lori Groneman, Tillman’s ex-girlfriend, but
to the community at large.
¶46 Although we do not rely on three of the four
transcribed statements identified by Tillman because they are not
contained in the record, see supra ¶ 36 n. 8, we accept Tillman’s
concession that, like the suppressed transcripts, the other
pretrial statements made no mention of Tillman’s
“revengefulness.” We also observe that, during the preliminary
hearing, Sagers never suggested Tillman was dangerous, but
rather, testified that Tillman non-threateningly “told me that it
was all right” after she refused to kill Schoenfeld and Groneman
with a gun he provided.10 Because the transcripts possessed by

10 (...continued)
would have meaningfully aided such an impeachment attempt,
Tillman cannot successfully claim that he was prejudiced by the
absence of the suppressed transcripts in this regard.
11 As an additional observation, we note that even if we
were to rely on the three transcripts not contained in the
record, a portion of at least one transcript quoted by Tillman
demonstrates that Sagers resisted the assertion that she feared
Tillman. Specifically, in an interview with prosecutor Mike
Christensen, Sagers expressly denied that Tillman had ever hit
her or threatened her or her family with injury and stated that
Tillman only got “rough” with her once when, the morning after
she refused to shoot Schoenfeld and Groneman, Tillman pushed her
out of the doorway to her apartment while retrieving his gun. It
would appear that this categorical denial of Tillman’s
dangerousness could have been used by the defense to undermine
Sagers’s “revengefulness” testimony at trial far more effectively
than the mere absence of statements about Tillman’s
“revengefulness” in the undisclosed partial transcripts.
17 No. 20030148
Tillman prior to trial could have been used to demonstrate that
Sagers’s expressions of fear of Tillman’s “revengefulness” at
trial was a recent addition to her testimony. Thus, the omission
of any reference to Tillman’s “revengefulness” in the suppressed
transcripts is merely cumulative of other evidence that defense
counsel possessed and could have utilized during trial.11
d. The decision to set Schoenfeld’s bed on fire
¶47 Tillman asserts that another non-cumulative feature of
the suppressed transcripts “pertains to Sagers’[s] role in the
decision to set [Schoenfeld’s] bed on fire.” He argues that
Sagers admitted at trial, for the first time, that the idea of
using cigarettes and setting a fire was hers, a statement
contradicting the partial transcripts, in which she insisted that
she had “no involvement” in the homicide. Tillman contends that,
if the suppressed transcripts had been disclosed prior to trial,
defense counsel could have pointed to Sagers’s ever-evolving
story and argued that she “made the admission about the fire in
response to extreme pressure” applied by Sgt. Thirsk during the
pretrial interviews and “out of fear of violating [her] immunity
agreement.”
¶48 As an initial response, we reject Tillman’s
characterization of Sagers’s trial testimony as an admission that
the idea of setting a fire was her own. Although Sagers admitted
during trial that it was her idea to stage the scene to make it

No. 20030148 18
appear that cigarettes had caused the fire, she never admitted to
having suggested starting the fire itself. Additionally, Tillman
admits that the absence of an admission regarding the cigarette
idea is “consistent with the other recorded pre-trial statements”
available to defense prior to trial. Because, by Tillman’s own
admission, these other statements could have been used in the
place of the suppressed transcripts to challenge Sagers’s
“evolving story,” we conclude that Sagers’s failure to mention in
the suppressed transcripts that the use of cigarettes was her
idea is merely cumulative to impeachment evidence available to
the defense at trial.
¶49 Having concluded that the categories of evidence
discussed above constitute mere cumulative impeachment evidence,
we now turn to the portions of the suppressed transcripts that we
conclude provide non-cumulative impeachment evidence.
2. Non-Cumulative Evidence
¶50 Tillman argues that the undisclosed partial transcripts
provide important non-cumulative impeachment evidence not
identified by the district court. Specifically, Tillman argues
that the suppressed transcripts (1) belie the reliability of
Sagers’s testimony recounting the order of events during the
murder and (2) reveal that Tillman was suicidal at the time the
murder was committed. We address each of Tillman’s arguments in
turn.
a. The sequence of events
¶51 Tillman first observes that the suppressed transcripts
establish that Sagers was unclear about the sequence of events
surrounding Schoenfeld’s murder. According to Tillman, this
uncertainty had all but vanished when Sagers took the stand at
trial, at which time she was able to confidently recall the
precise order of events. Tillman argues that the suppressed
transcripts could have been used to show that Sagers’s memory
dramatically improved in a very short time, thereby undermining
her credibility. We agree.
¶52 At trial, Sagers definitively testified that after
hearing Tillman hit Schoenfeld the first time, she looked inside
the bedroom and observed Tillman wiping blood off the wall with a
towel. She stated that Tillman then asked her to hand him
something lying on the floor--a piece of clothing--which he
placed over Schoenfeld’s head before striking him again with the
ax.

19 No. 20030148
¶53 We acknowledge that defense counsel could have utilized
Sagers’s preliminary hearing testimony to challenge, to some
degree, the accuracy of Sagers’s trial testimony addressing the
order of events. At the preliminary hearing, Sagers testified
that, after hearing Tillman hit Schoenfeld a “couple of times,”
she was asked to hand him “a shirt or something that was lying on
the floor” before Tillman got a towel to wipe blood off the wall.
However, as is evident from the following excerpt, Sagers
displayed significant uncertainty as to the order of events in
her pretrial interviews with Sgt. Thirsk:
Q. How did you know what to hand him?
A. (Sign) [sic]
Q. Did he say, I’m going to hit him again
and you said put something over him I
didn’t want [sic] to see him?
A. No I didn’t say that.
Q. O.k.
Q. But he said hand me what?
A. . . . Now I don’t know . . . I don’t
know if he wiped the wall off with a
towel before or after. Now I don’t
know.
Q. But you remember that for sure.
A. I remember him doing. [sic]
Q. Wiping the wall . . .
A. But I don’t remember if that was . . .
before he put this other thing on his
head or after. I don’t remember which
. . . how it came.
Q. You mean what? How does this refer in
the order of when you handed it to him?
A. Well I don’t know . . .
(Ellipses in original.)

No. 20030148 20
¶54 Unlike Sagers’s statement during the preliminary
hearing, which was made months before trial, this testimony was
elicited, at most, four weeks prior to, and possibly mere days
before, Sagers testified with seeming confidence at trial. We
agree with Tillman that, given the statement’s proximity to
trial, it is not merely cumulative impeachment evidence, and we
conclude that it could have been used to undermine Sagers’s
credibility at trial. We leave for later analysis whether, when
considered with all other non-cumulative evidence contained in
the undisclosed partial transcripts, this evidence is sufficient
to undermine our confidence in the sentence Tillman received.
b. Sagers’s statement that Tillman was suicidal
¶55 Tillman next argues that Sagers’s statement in the
suppressed transcripts that Tillman was suicidal in the weeks
leading up to the murder is also important non-cumulative
evidence. We agree.
¶56 In the suppressed transcripts, Sagers stated that
Tillman would “get real depressed sometimes and well he did’nt
[sic] really come out and say this one night but he, he said it’s
either got to be him or me ya know he was incinuating [sic]
suicide the way I took it.” Because the State does not challenge
Tillman’s assertion that this suicide reference is non-
cumulative, and because we have not been directed to other
evidence available prior to trial indicating that Tillman may
have been suicidal in the weeks preceding the murder, we agree
that this evidence was non-cumulative and could have been
presented as a mitigating factor during the penalty phase of the
proceedings. As with the evidence of Sagers’s uncertainty about
the sequence of events surrounding the murder, we leave for later
analysis whether, in conjunction with all the additional non-
cumulative, suppressed evidence, Sagers’s statement that Tillman
was suicidal prior to Schoenfeld’s murder is sufficient to
undermine our confidence in his sentence.
¶57 Having addressed the evidence Tillman asserts the
district court incorrectly considered cumulative, we now examine
whether the district court correctly identified three additional
categories of non-cumulative evidence contained in the suppressed
transcripts.
B. Evidence Identified as Non-Cumulative by the District Court
¶58 As previously noted, the district court reasoned that
the suppressed transcripts contained non-cumulative impeachment
evidence favorable to Tillman because (1) Sgt. Thirsk displayed a

21 No. 20030148
great deal more disbelief and incredulity at Sagers’s account of
the murder in the transcripts than he displayed at trial, (2)
some of Sgt. Thirsk’s statements and questions in the transcripts
gave the appearance that he was coaching Sagers into giving more
believable testimony, and (3) the partial transcripts contained
over sixty notations indicating that Sagers laughed while being
questioned about the murder. The State challenges the district
court’s conclusion. It argues that the first two categories of
non-cumulative evidence identified by the district court,
relating to Sgt. Thirsk’s disbelief and the appearance of
coaching, were cumulative of other evidence available at trial,
and therefore should not have been considered in the district
court’s Brady materiality analysis. The State also challenges
the district court’s conclusion that the notations of Sagers’s
laughter in the transcripts reflected inappropriate levity. We
examine each of these arguments in turn.
1. Evidence of Sgt. Thirsk’s Disbelief and Incredulity
¶59 In its ruling, the district court observed that, during
trial, Sgt. Thirsk testified that “at one point” during a
conversation with Sagers, “I told her that I did not believe her
answers to my questions and told her that I believed she had in
fact struck [Schoenfeld].” (Emphasis added.) According to the
district court, that isolated statement at trial stands in sharp
contrast to evidence contained in the suppressed transcripts, in
which Sgt. Thirsk’s statements and questions indicate that he
believed Sagers was “excluding details or not telling a credible
story” in “[n]early every page of the first partial transcript .
. . and many of the pages of the second partial transcript.” The
court reasoned that defense counsel could have used these
dramatic displays of incredulity to undermine the assertion that
Sgt. Thirsk had made a “one-time display of incredulity” about
Sagers’s account, thereby attacking Sagers’s credibility and
increasing the possibility that the jury may have chosen not to
impose the death penalty.
¶60 The State argues that the district court erred in
concluding that the additional information contained in the
transcripts relating to Sgt. Thirsk’s displays of incredulity and
disbelief provided new information otherwise unknown to the
defense. It argues, in essence, that Sgt. Thirsk’s displays of
incredulity in the transcripts were merely cumulative of
Sgt. Thirsk’s statement in front of the jury that he “did not
believe [Sagers’s] answers to [his] questions.” Although we
agree that this evidence was cumulative of other evidence
available to defense counsel prior to trial, we do so for a
different reason than that asserted by the State.

No. 20030148 22
¶61 Our examination of the record reveals that, contrary to
the district court’s observation, Sgt. Thirsk did not testify as
to simply a one-time display of disbelief during trial. Rather,
while Sgt. Thirsk was examined outside the presence of the jury
regarding the results of Sagers’s polygraph tests, he confirmed,
in response to defense counsel’s inquiry, that prior to trial he
had told other investigators, an individual from the county
attorney’s office, and both defense counsel that he didn’t
believe Sagers “for one minute.” Because it is evident that
defense counsel already knew Sgt. Thirsk greatly distrusted
Sagers’s account of the murder, and because Sgt. Thirsk
explicitly testified as to that fact, the evidence of Sgt.
Thirsk’s disbelief in the suppressed transcripts is simply
cumulative of other evidence available to defense counsel prior
to trial. Consequently, the district court erred in concluding
that Sgt. Thirsk’s displays of incredulity in the transcripts
were material and prejudicial for purposes of Brady.
2. Evidence of Coaching by Sgt. Thirsk
¶62 In its ruling, the district court acknowledges that
Sgt. Thirsk’s skepticism in the transcripts about Sagers’s
account of the murder “was coupled with encouragement to tell the
truth.” Nevertheless, the court concluded that some of
Sgt. Thirsk’s statements and questions suggested that he was
encouraging Sagers to “simply tell a story that could be
believed,” and that this evidence of coaching could have been
used by the defense to undermine Sagers’s credibility. Examples
of Sgt. Thirsk’s coaching in the suppressed transcripts are as
follows:
Q: I understand the defense council [sic]
is not going to be very friendly. And
he is’nt [sic] going to be saying Gee
[sic] Carla how did you know where the
light was.
A: Yea I know that.
Q: She’s going to hit you with it like that
[sic] how did you know where the light
was and you know what that applies [sic]
to the jury?
A: That I’ve been there before.
Q: That’s right. Or something that adds to

23 No. 20030148
[sic] do you see what I mean?
A: . . .
Q: How did you know he was going to hit him
again? I felt it, nobody buys that.
A: Well I (laugh).
Q: Ok, nobody buys that. Even if it’s true
nobody buys it, something has to have
been happened [sic] either within your
visual,
A: Well why else would he have to cover his
head up and
Q: Don’t ever say that. Why else would he,
it does’nt [sic] answer a question.
A: I know it does’nt [sic] but . . .
(Ellipses in original.)
¶63 On appeal, the State challenges the district court’s
conclusion that the transcripts evidence “coaching” at all,
suggesting instead that the transcripts reflect only “aggressive
interrogation.” The State also argues that, even if the
transcripts give the appearance of coaching, the issue of
coaching was “nothing new.” In support of this argument, the
State observes that, at trial, defense counsel questioned
Sgt. Thirsk about possible coaching in the following manner:
Q. Again directing your attention to the
January 3rd conversation, did you ever
indicate to Miss Sagers that you wanted
her to say or testify that she had hit
[Schoenfeld]?
A. No, sir, I did not.
Q. Did you ever indicate or imply to Miss
Sagers that you wanted her to testify
falsely?
A. No, sir, I admonished her about doing
that.

No. 20030148 24
As a result, the State argues that any coaching evidence
contained in the transcripts would have been merely cumulative of
other evidence presented at trial.
¶64 The problem with both parties’ arguments is that,
regardless of whether Sgt. Thirsk was engaged in “aggressive
interrogation” or “coaching,” the suppressed transcripts arguably
present the appearance that Sgt. Thirsk was coaching Sagers by
encouraging her to tell a more believable story. Furthermore,
contrary to the State’s assertions, the transcripts would, in
fact, have provided defense counsel with evidence that was not
otherwise available either before or during trial--namely, a
means by which defense counsel could have attempted to rebut Sgt.
Thirsk’s denial that he coached Sagers.
¶65 The State counters that, even if the transcripts did
contain evidence of coaching that was otherwise unavailable to
the defense, such evidence would actually have been damaging to
Tillman because Sgt. Thirsk’s questioning “caused Sagers to admit
more involvement in the case, not less.” According to the State,
further emphasizing the possibility of coaching “may have caused
the jury to believe that Sagers was even less involved, and that
she only confessed to more involvement because [Sgt.] Thirsk
bullied her into it.”
¶66 While both Tillman and the State put forward plausible
theories addressing the potential impact of the coaching
evidence, we are persuaded that Tillman would have benefitted if
the evidence had been presented at trial. For, even if the
transcripts indicated that Sagers could be coached into admitting
more involvement about certain aspects of the murder, Tillman
could still have used the transcripts to argue to the jury that
other aspects of her testimony regarding her own role and
Tillman’s role in the murder were either fabricated or
exaggerated as well.
¶67 Additionally, contrary to the State’s suggestion, the
possible coaching reflected in the transcripts does not involve
Sagers simply admitting greater involvement in the murder. As
the district court accurately concluded, the transcripts also
evince an overall attempt on the part of Sgt. Thirsk to get
Sagers to present a more believable or credible narrative of the
murder to the jury. Had the transcripts been properly disclosed
prior to trial, Tillman could have, at the very least,
introduced, in the penalty phase, specific instances of possible
coaching contained in the transcripts to explore the extent to
which Sagers’s testimony changed or was crafted as a result of
Sgt. Thirsk’s questioning. This may have raised questions in the

12 Although we quote only three examples of inappropriate
laughter, we observe that the transcripts are replete with
instances where Sagers appears to exhibit inappropriate levity
during questioning by Sgt. Thirsk.
25 No. 20030148
minds of the jurors as to the overall veracity or credibility of
Sagers’s account of her and Tillman’s respective roles in the
murder and perhaps affected a juror’s assessment of the
appropriate punishment to impose on Tillman.
¶68 Thus, we agree with the district court that the
evidence of possible coaching in the transcripts was not
cumulative, and could have been used to benefit Tillman during
the sentencing phase of his trial. Like the other non-cumulative
evidence identified above, we leave for later analysis whether,
when considered in combination with all the other non-cumulative
evidence contained in the suppressed transcripts, this evidence
of coaching undermines our confidence in the sentence imposed.
We now turn to the State’s final evidentiary challenge regarding
the suppressed transcripts’ numerous notations of Sagers’s
laughter.
3. Sagers’s Laughter
¶69 In its ruling, the district court found that the
suppressed partial transcripts contain approximately sixty
notations indicating moments when Sagers laughed while being
questioned by Sgt. Thirsk about the murder. The district court
found that while “some of these notations refer to nothing more
than nervous laughter,” others “appear inappropriate in
circumstances where the violent death of a human being and
[Sagers’s] involvement in that death are being discussed.” For
example,12 while Sagers was explaining that she turned her back
while Tillman struck Schoenfeld in the head, the following
exchange occurred:
A. I didn’t want to see it.
Q. You didn’t see . . . wanna see what?
A. I didn’t want to see him getting hit.
Q. How did you know he was going to be hit?
A. (laugh)
Then, while Sgt. Thirsk was attempting to reconstruct the events
surrounding the murder, Sagers laughed at the fact that she could

No. 20030148 26
not account for the location of the ax used to bludgeon
Schoenfeld:
Q. O.k. where’s the hatchet? You just used
both hands to cover my head.
A. (laugh)
Similarly, while responding to Sgt. Thirsk’s questioning
regarding the development of the plan to kill Schoenfeld, the
following exchange occurred:
Q: How was he going to do it?
A: Just knock him out when he walked in the
door.
Q: Well did he say before that he was going
to wait until he was gone then wait for
him inside or how did he say he was
going to ya know accomplish this feat?
A: (laugh).
¶70 The district court concluded Sagers’s exhibition of
such flippancy, “while in her immunized situation, about the
homicide and the role she played in carrying it out certainly
would have assisted trial counsel in painting a picture of [her]
as someone who was not to be believed.”
¶71 The State challenges the district court’s conclusions
regarding Sagers’s laughter in two respects. First, it argues
that it is just as likely, and perhaps even more likely, that the
notations of laughter contained in the transcripts simply
indicate a nervous response to being interrogated, rather than an
inappropriate reaction to the questions themselves. However, in
advancing this argument, the State does not challenge as clearly
erroneous the district court’s factual finding that the laughter
was inappropriate, and we therefore accept that at least some of
the levity displayed by Sagers during questioning was
inappropriate. See State v. Widdison, 2001 UT 60, ¶ 60, 28 P.3d
1278 (noting that a party who wishes to challenge a factual
finding must first marshal the evidence in support of the finding
and then show why the marshaled evidence fails to support the
finding). Moreover, even if the State had challenged the
district court’s finding, we would be disinclined to conclude
that the district court’s finding of inappropriate levity was
clearly erroneous.

27 No. 20030148
¶72 During the evidentiary hearing held by the district
court to consider Tillman’s petition for post-conviction relief,
Sgt. Thirsk testified that, during his contact with Sagers, she
“tended to laugh a lot or giggle a lot,” so it was “something
[he] noted.” When asked how much he recollected about Sagers’s
laughter, Sgt. Thirsk responded in this way:
A. Not much. I remember at the time that
it bothered me.
Q. Why did it bother you?
A. Because it seemed out of character for
the seriousness of the situation.
Q. Did it seem as if she was taking the
process seriously?
A. At times, yes; at times, no.
Q. Did that laughter seem like it was
nervous laughter, or did it seem more
lighthearted?
A. Both.
Q. And if we were to focus on using the
word “lighthearted,” what would that
mean to you?
A. Something both of us thought was comical
or odd, maybe in the discussion, the
pre-test, about things of other
subjects.
Q. Was she laughing at things you thought
maybe she shouldn’t have been laughing
at?
A. A couple of times, yes.
The fact that Sgt. Thirsk remembered Sagers’s laughter almost
twenty years after the interviews in question and that the
laughter “seemed out of character for the seriousness of the
situation” and included lighthearted laughter at inappropriate
times strongly supports the district court’s finding that the
notations of laugher were more than simply a nervous response.

13 The following excerpt is one of the many examples
contained in the suppressed transcripts where a notation of
laughter can reasonably be viewed as undermining confidence in
the veracity of an answer provided by Sagers:
Q: And when was this about?
A: . . . I don’t remember when this
happened.
Q: You don’t have to give me an exact date
your best recollection? [sic]
(continued...)
No. 20030148 28
¶73 Even if Sagers exhibited inappropriate levity during
her interviews with Sgt. Thirsk, the State argues that the
district court’s conclusion that such laughter would have
undermined Sagers’s credibility “is a leap of speculation not
supported by any authority or evidence.” It argues that, “[i]f
counsel were able to convince the jury that [Sagers’s] laughter
were inappropriate, it might establish that [Sagers] was a more
reprehensible person, but it would not establish that she was a
liar” and would therefore not affect the credibility of her
description of the events that occurred the night of the murder.
¶74 Tillman counters that the evidence of Sagers’s laughter
during her interviews would have affected the jury’s assessment
of her credibility. He argues that her flippancy, as documented
in the suppressed transcripts, could have been interpreted as
rebutting the veracity of her claims during trial that she played
only a minor role in killing Schoenfeld and was intimidated by
her fear of Tillman into cooperating with the murder. Tillman
asserts that undermining the State’s portrayal of Sagers as a
victim who was dominated by Tillman and pressured into
participating in the murder would have benefitted him by directly
affecting the jury’s calculation of Tillman’s future
dangerousness during the penalty phase of the proceeding. We
agree.
¶75 The notations of laughter raise questions about the
credibility of Sagers’s story and therefore constitute valuable
impeachment evidence. The inappropriate levity Sagers displayed
in the suppressed transcripts could be viewed as evidence of
Sagers’s inability to grasp the gravity of her situation, leading
jurors to question whether Sagers understood the overriding
importance of providing completely truthful testimony. Such
levity may have also raised questions as to whether Sagers was
willing to modify her testimony to insulate herself from blame,
protect her immunity from prosecution, and respond to attendant
pressures demanding a credible narrative of the events
surrounding Schoenfeld’s murder.13

13 (...continued)
A: . . . March.
Q: Ok.
A: (laugh).
14 The first two prongs of a Brady claim require a showing
that evidence favorable to the defense was suppressed by the
State. See Strickler, 527 U.S. at 281-82.
29 No. 20030148
¶76 Evidence demonstrating Sagers’s inappropriate levity
would also have proven valuable to Tillman in his efforts to
crack the veneer of helplessness and victimization within which
the prosecution took pains to encase Sagers at trial. Tillman
could have used the frequently flippant attitude displayed by
Sagers during the interviews to counteract the prosecution’s
presentation of Sagers as another one of Tillman’s victims, who
only participated in the murder plot because she was intimidated
by Tillman and fearful of reprisals if she chose not to
cooperate.
¶77 The notations of laughter contained in the suppressed
transcripts are unlike any other evidence that was available to
Tillman before or during his trial. As a result, we agree with
the district court that evidence of Sagers’s laughter is not
merely cumulative of other evidence.
¶78 Having identified the relevant non-cumulative evidence
contained in the suppressed transcripts, we next analyze of
whether this evidence, considered collectively, is sufficient to
undermine confidence in Tillman’s death sentence. For the
reasons discussed below, we agree with the district court that
confidence in Tillman’s death sentence is undermined in light of
the suppressed evidence. As a result, we conclude that the
suppressed evidence is material for Brady purposes.
C. When Considered Collectively, the Suppressed Evidence
Undermines Confidence in Tillman’s Death Sentence
¶79 As discussed above, the State concedes that the first
two prongs14 of Tillman’s Brady claim are met in this case.
Therefore, we confine our inquiry to a determination of whether
the absence of the suppressed transcripts prejudiced Tillman
during the sentencing phase of his trial. We conclude that
Tillman was prejudiced by the absence of the evidence and
therefore affirm the district court’s decision to vacate his
sentence and order a new sentencing hearing.

15 As the district court noted, Sagers’s credibility and
moral culpability are related to each other. At trial, Tillman
attempted to magnify the role Sagers played in Schoenfeld’s
murder. In furtherance of this goal, Tillman called Sgt. Thirsk,
who testified that he believed Sagers participated in the murder
(continued...)
No. 20030148 30
¶80 In order to determine whether the absence of suppressed
evidence favorable to the defense resulted in prejudice to a
defendant, the evidence in question must be “material.” See
Strickler, 527 U.S. at 282-83. A defendant can successfully
establish materiality by 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.” Kyles,
514 U.S. at 433 (internal quotation omitted). A sufficiently
reasonable probability of a different outcome is established
“when the government’s evidentiary suppression undermines
confidence in the outcome.” Id. at 434 (internal quotation
omitted). When undertaking a materiality analysis, the
suppressed evidence must be evaluated in light of the entire
record. Agurs, 427 U.S. at 112. An “item by item” evaluation of
the suppressed evidence may be conducted, but it is the
cumulative or collective effect of the suppressed evidence that
ultimately must be weighed to determine whether confidence in a
particular outcome is undermined by the absence of the suppressed
evidence. See Kyles, 514 U.S. at 436 & n.10.
¶81 In accordance with the standard outlined above, we must
determine whether the absence of the following evidence at
Tillman’s trial undermines confidence in the death sentence
imposed by the jury: (1) the dramatic improvement, just before
trial, in Sagers’s ability to recall the sequence of events
leading up to and following Schoenfeld’s murder, (2) the
appearance of coaching by Sgt. Thirsk, (3) the numerous notations
of laughter indicating inappropriate levity on the part of
Sagers, and (4) Sagers’s statements that Tillman was depressed
and suicidal prior to the murder.
¶82 The State argues that the suppressed evidence is too
inconsequential to justify disturbing Tillman’s death sentence.
Tillman disagrees, arguing that the presence of the suppressed
evidence at trial would have significantly undercut the
prosecution’s efforts to justify the imposition of the death
penalty. In essence, Tillman asserts that the ability to more
effectively attack Sagers’s credibility and increase her moral
culpability in the eyes of the jury would have had a positive
impact on his sentencing process.15 The State, on the other

15 (...continued)
to a greater extent than her testimony would suggest. It is
highly likely that doubts about Sagers’s credibility would lead
jurors to assume, just as Sgt. Thirsk did, that Sagers played a
greater role in Schoenfeld’s murder than her trial testimony
suggested.
31 No. 20030148
hand, argues that Sagers’s credibility and moral culpability are
not relevant to a determination of whether Tillman deserves the
death penalty.
¶83 The district court agreed with Tillman, stating that
“the less credible [Sagers’s] testimony was shown to be, the
greater her degree of moral culpability would have been in the
minds of the jurors. Moreover, the greater her moral
culpability, the less likely jurors would have voted to impose a
sentence of death on [Tillman].” The district court did not
explain why it concluded that a death sentence would be less
likely for Tillman if Sagers’s moral culpability were increased
in the minds of the jurors. On appeal, the State argues that
there is no rational explanation for the district court’s
pronouncement. We disagree.
¶84 A critical component of the prosecution’s argument
justifying the imposition of the death penalty on Tillman was
that Sagers herself, like Lori Groneman before her, was one of
Tillman’s victims. The success of this strategy depended heavily
on the prosecution’s ability to diminish, to the greatest extent
possible, any moral culpability on the part of Sagers. The
prosecution attempted to accomplish this goal by painting Sagers
as a submissive, innocent young woman who was swept away by the
deviousness of Tillman. During the guilt phase of Tillman’s
trial, the prosecution stated that Sagers “got subjected into
this situation because of the fact that she was a virgin, because
of the fact that she felt guilty about an abortion, and all the
rest.” At the penalty phase of Tillman’s trial, the
prosecution’s theme was reprised. The image of Tillman
corrupting Sagers was once again brought to the jury’s attention,
with the prosecution stating that Tillman led Sagers “to believe
one thing when . . . another was occurring. And I think you look
at Carla Sagers and the devastation that has occurred to her life
and you say to yourself, ‘There is a lot of victims [sic] in this
case.’”
¶85 The prosecution painted Tillman as a man who repeatedly
manipulated and took advantage of innocent women, with Sagers
merely serving as his latest victim. The prosecution attempted
to convince the jury of this by analogizing Sagers to other women

No. 20030148 32
in Tillman’s life. For example, the State pointed out that Lori
Groneman became sexually involved with Tillman when she was an
impressionable seventeen. Although Sagers was thirty when her
own sexual relationship with Tillman commenced, the prosecution
pointed out that it was Sagers’s first sexual experience and
stated that “[s]exual relationships are very serious business,
especially for someone like Carla.” The prosecution also drew
parallels between Sagers and Tillman’s wife. “[C]onsider Carla
Sagers, who interestingly enough sort of reminded me a little bit
of Mr. Tillman’s wife, led along, led to believe one thing when
in fact another was occurring.” By drawing these parallels, the
prosecution was strongly implying that Tillman engaged in a
pattern of behavior destructive to the women he encountered--a
pattern, the prosecution suggested, that could only be terminated
by Tillman’s execution.
¶86 As the above excerpts show, the efforts to reduce
Sagers’s moral culpability were not undertaken solely to boost
her credibility on the witness stand. Those efforts were also an
attempt to justify the imposition of the death penalty on Tillman
and to alleviate concerns in the jurors’ minds about the
potential for drastic disparity in punishment if Tillman received
the death penalty while Sagers, pursuant to her immunity grant,
walked away completely unpunished. The prosecution directly
acknowledged the disparity likely weighing on the jurors’ minds,
stating that the jurors may have asked themselves, “if we execute
or find the sentence of death against Mr. Tillman, shouldn’t we
also find one against Carla Sagers?” The prosecution chose to
address that concern by taking great pains not only to relieve
Sagers from moral responsibility for the murder, but to actually
cast her as another one of Tillman’s victims.
¶87 The suppressed evidence that was unavailable to Tillman
during his trial could have been used to undermine the
prosecution’s attempts to diminish Sagers’s moral culpability and
present her as another in a long line of Tillman’s victims. The
suppressed transcripts reveal that, shortly before trial, Sagers
experienced a marked improvement in her ability to confidently
recall the sequence of events surrounding Schoenfeld’s murder.
Additionally, the transcripts contain numerous passages in which
Sgt. Thirsk appears to be coaching Sagers to enable her to supply
a more believable narrative. The evidence of Sagers’s dramatic
improvement of memory and the appearance of coaching on the part
of Sgt. Thirsk directly affect Sagers’s credibility as a witness,
which may have led the jury to believe that Sagers was more
involved in the murder than her testimony implied. Tillman could
have utilized this evidence to portray Sagers’s testimony as a
work in progress, carefully honed by the prosecution over the

33 No. 20030148
course of many months, and which only took its final shape mere
days before trial. The information contained in the suppressed
transcripts would have helped Tillman advance the argument that
Sagers’s testimony was forged in the heat of Sgt. Thirsk’s
interrogations and was motivated by a desire to please the people
who had granted her complete immunity.
¶88 Similarly, Tillman could have utilized evidence of
Sagers’s inappropriate levity during her interactions with
Sgt. Thirsk not only to attack her credibility, but to more
directly confront the efforts by the prosecution to present her
as just one more of Tillman’s many victims. The State concedes
that the notations of laughter could have led the jury to
consider Sagers a more reprehensible person, but then asserts
that any moral assessment of Sagers is irrelevant to Tillman’s
sentencing proceeding. We reject the State’s argument that there
is no connection between the jurors’ assessment of Sagers and
their assessment, for sentencing purposes, of Tillman. Evidence
tending to undermine Sagers’s status as an innocent young woman
corrupted by Tillman would have aided Tillman during the penalty
phase of his trial. The more morally reprehensible Sagers
appeared to jurors, the less inclined they would be to view her
as a victim. Further, increased moral culpability on the part of
Sagers would throw into even harsher relief the disproportionate
treatment of Tillman when compared with the treatment of Sagers.
The record reveals that the prosecution itself was concerned that
the disparity in treatment would potentially disincline the jury
to impose the death penalty, and any evidence tending to widen
that disparity would have likely affected the jury’s
deliberations in the penalty phase.
¶89 We express no opinion as to whether, as a general
matter, it is appropriate for juries to consider punishments
imposed on co-defendants or accomplices when determining whether
the death penalty is appropriate. This case involves a unique
situation in which the prosecution attempted to present Sagers
not as an accomplice to murder, but as a victim of the capital
defendant. This characterization made Sagers’s moral culpability
for the crime highly relevant to the ultimate sentencing
determination because, if the defense could show moral
culpability on the part of Sagers, it would undermine a critical
justification for the imposition of the death penalty. The
State’s grant of full immunity to Sagers, while obviously an
indication of the value of her testimony, can also be viewed as
an attempt to bootstrap Sagers into the status of an innocent
victim, undeserving of punishment. In this sense, the grant of
immunity is just another marker of Sagers’s alleged status as
“victim,” a status designation that Tillman was certainly

No. 20030148 34
entitled to attack as part of his defense.
¶90 Finally, the defense was unable to take advantage of
Sagers’s express statement in the suppressed transcripts that
Tillman was depressed and even suicidal prior to Schoenfeld’s
murder. At the time of Tillman’s trial, section 76-3-207(2) of
the Utah Code listed several non-exclusive mitigating factors to
be considered by juries during the sentencing phase of trials.
Included in that list was that the “murder was committed while
the defendant was under the influence of extreme mental or
emotional disturbance.” Utah Code Ann. § 76-3-207(2)(b) (Supp.
1982) (current version at Utah Code Ann. § 756-3-207(4)(b)
(2003)); see also id. § 76-3-207(2)(g) (allowing capital
defendants to present “any other fact in mitigation of the
penalty” during the sentencing phase of trial) (current version
at Utah Code Ann. § 76-3-207(4)(g) (2003)). If information about
Tillman’s depression and suicidal thoughts prior to Schoenfeld’s
murder had been presented to the jury, it may have affected
sentencing deliberations.
¶91 We are convinced that, when considered collectively and
in light of the entire record, the evidence contained in the
suppressed transcripts is of sufficient import that its absence
at trial undermines confidence in the sentence imposed on
Tillman. We note that the sentencing phase of a capital trial is
not a scientific process, but rather requires the weighing of a
multitude of both aggravating and mitigating factors. See id.
§ 76-3-207(2) (listing six types of mitigating circumstances and
concluding that a defendant may present “any other fact in
mitigation of the penalty”); California v. Brown, 479 U.S. 538,
545 (1987) (O’Connor, J., concurring) (“The individualized
assessment of the appropriateness of the death penalty is a moral
inquiry . . . [and] should reflect a reasoned moral response to
the defendant’s background, character, and crime . . . .”); State
v. Wood, 648 P.2d 71, 79-80 (Utah 1982) (stating that no specific
weight is to be assigned to individual aggravating and mitigating
factors and that all circumstances must be weighed when
considering the appropriateness of the penalty).
¶92 We also note that imposing the death penalty on Tillman
required a unanimous decision on the part of the jury. Utah Code
Ann. § 76-3-207(3). Consequently, all that was necessary for
Tillman to avoid the death penalty was a single doubting juror.
If just one juror, while considering the aggravating and
mitigating factors, had concluded that the death penalty was
inappropriate under the circumstances, a punishment of life
imprisonment would have been imposed. If the suppressed
transcripts had been available to Tillman, he could have more

16 As noted by Justice Stewart in his dissent in Tillman v.
Cook, 855 P.2d 211, 231 (Utah 1993), the imposition of the death
penalty on Tillman was not a foregone conclusion:
There were mitigating factors in this case.
Tillman’s family testified on his behalf.
Furthermore, virtually all of the State’s
case against Tillman came from a person who,
herself, could have been prosecuted for
capital homicide, and yet was given total
immunity from prosecution. . . . Tillman had
no record of any prior homicide, a factor
that has been significant in a number of
death penalty cases in this state, especially
where there was only one homicide. Finally,
although Tillman has a criminal record, his
most serious crimes were committed more than
twenty years ago, and only one, attempted
robbery committed in 1962, appeared to be a
crime of violence.
35 No. 20030148
effectively countered the prosecution’s attempts to add Sagers to
the list of his victims. That ability may very well have been
the difference between life and death.16 While the suppressed
transcripts do not contain any earthshattering revelations, they
do contain significant evidence that damages the credibility of
the prosecution’s star witness and undermines critical aspects of
the prosecution’s theory as to why the death penalty was
justified in this case. We are not certain that the disclosure
of the transcripts prior to Tillman’s trial would have resulted
in a different sentence. We are, however, compelled to conclude
that there exists a significant possibility that Tillman would
have achieved a more favorable sentence had the State fully
complied with its constitutionally mandated disclosure
obligations. That possibility undermines our confidence in the
sentence imposed, and we therefore affirm the district court’s
decision to vacate that sentence and commence a new sentencing
hearing.
CONCLUSION
¶93 Tillman has demonstrated good cause excusing his
failure to raise his current Brady claim in an earlier petition
for post-conviction relief. The suppression of the transcripts
giving rise to his current claim, coupled with affirmative
representations by the State that no such transcripts existed,
lead us to conclude that Tillman’s current claim was overlooked
in good faith and that his current petition was not motivated by
an intent to delay or otherwise abuse the post-conviction relief

No. 20030148 36
process.
¶94 Tillman has also demonstrated that his right to due
process was violated by the absence of the suppressed transcripts
at his trial. The evidence contained in those transcripts tends
to undermine the credibility of Sagers, unquestionably the most
important trial witness, and undercuts the prosecution’s attempts
to paint Sagers as an innocent victim. The suppressed evidence
also includes an express statement by Sagers that Tillman was
suicidal prior to the time he committed the murder. Considered
collectively, the evidence contained in the suppressed
transcripts would have aided Tillman’s efforts to mitigate his
moral culpability while highlighting the moral culpability of
Sagers. This, in turn, would have called into question Sagers’s
status as another victim of Tillman and would also have
accentuated the State’s dramatically disparate treatment of
Tillman and Sagers with respect to punishment, making the
imposition of the death penalty less likely. Given the
significance of the suppressed evidence and the fact that swaying
just one juror would have resulted in a more favorable sentence
for Tillman, we conclude that Tillman is entitled to a new
sentencing proceeding. We therefore affirm.
---
¶95 Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Parrish, and Judge Kay concur in Justice Durrant’s
opinion.
¶96 Having disqualified himself, Justice Nehring does not
participate herein; District Judge Thomas L. Kay sat.