State v. Carter, 920110

Citation888 P.2d 629
Decision Date18 January 1995
Docket NumberNo. 920110,920110
PartiesSTATE of Utah, Plaintiff and Appellee, v. Douglas Stewart CARTER, Defendant and Appellant.
CourtSupreme Court of Utah

R. Paul Van Dam, Atty. Gen., Carol Clawson, J. Kevin Murphy, Asst. Attys. Gen., Salt Lake City, for plaintiff.

Craig M. Snyder, Linda J. Barclay, Provo, for defendant.

DURHAM, Justice:

Defendant Douglas Stewart Carter appears before this court on appeal for a second time. In December 1985, Carter was convicted of murder in the first degree, in violation of Utah Code Ann. § 76-5-202 (Supp.1985), 1 and was sentenced to death. In his first appeal, State v. Carter, 776 P.2d 886 (Utah 1989) ("Carter I "), we affirmed the murder conviction but vacated the death sentence due to an erroneous jury instruction on aggravating circumstances and remanded the case for a new sentencing proceeding.

The second penalty hearing was held in January 1992 ("the 1992 penalty hearing"). 2 At the conclusion of the 1992 penalty hearing, a jury again unanimously rendered a verdict of death. Carter appeals from this second death sentence, having obtained an order staying his execution pending appeal. He also raises new issues, purportedly not raised in his first appeal, in a renewed challenge to the underlying murder conviction. We affirm Carter's conviction and sentence.

We deal first with those issues challenging the underlying murder conviction and then turn to Carter's arguments regarding the 1992 penalty hearing. Carter raises two claims of error with respect to his underlying conviction: (1) the denial of his January 1992 motion for a new trial and motion in limine to exclude evidence or alternatively to suppress, 3 and (2) the refusal to suppress his confession made to law enforcement officials in Nashville, Tennessee. 4

With respect to the 1992 penalty hearing, Carter makes the following arguments and claims of error: (1) Utah Code Ann. § 76-3-207(4) is unconstitutional on its face and as applied to this case, under both the United States and Utah Constitutions; (2) the trial court committed reversible error in allowing the jury to consider the allegedly heinous nature of the crime as an aggravating circumstance in determining his sentence; (3) the trial court erred by refusing to excuse for cause potential jurors who exhibited substantial bias and/or physical incapacity; (4) the trial court erred by admitting victim impact evidence; (5) the trial court erred by admitting evidence of the alleged rape of the victim; (6) the jury did not unanimously and specifically find, beyond a reasonable doubt, each aggravating factor relied on in imposing its sentence; and (7) the Utah capital sentencing scheme violates the United States and Utah Constitutions.

I. FACTS AND PROCEDURAL HISTORY

Given the long and complex history of this case, we undertake a complete recitation of the facts. On the night of February 27, 1985, Orla Oleson discovered his wife, Eva, murdered in their Provo, Utah home. The medical examiner testified that Mrs. Oleson had been stabbed eight times in the back, once in the abdomen, and once in the neck. The examiner further stated that Mrs. Oleson had received a fatal gunshot wound to the back of her head. Apparently, the murderer fired the gun at point blank range through a pillow to muffle the sound. Other testimony revealed that Mrs. Oleson's hands had been tied behind her back with a telephone cord and that her pants and pantyhose had been pulled down (or off) and lay at her feet. Her sanitary pad had been removed and also lay at her feet.

A specialist with the Bureau of Alcohol, Tobacco, and Firearms determined that the markings on the slug removed from the body were consistent with those produced by a .38 special handgun. However, the police could not locate the weapon at the murder scene. The knife used to inflict the stab wounds came from the Olesons' kitchen and was discovered on the floor near the body.

Carter first surfaced as a possible suspect in the case in early to mid-March 1985. The police included Carter's name on the original list of suspects for two reasons: (1) An eyewitness identified Carter as the probable perpetrator of an attempted "automobile trespass" which occurred about an hour or two prior to the murder in the same general area, and (2) the police received information that Carter's wife, Anne, on learning of the homicide, had told someone that she rushed home to see if her husband was involved.

Following these leads, on March 14, 1985, the police met with Carter and questioned him about both the automobile trespass charge and the Oleson homicide. Although Carter admitted that he knew Mrs. Oleson 5 and could not account for his whereabouts on the night of the murder, he denied committing the crime. Carter was fingerprinted and released.

On March 20, 1985, the police again questioned Carter regarding the homicide. The police told him that they doubted his truthfulness because of some discrepancies between his and his wife's statements. Carter asserted that he was telling the truth. The police then obtained Carter's permission to take hair samples to compare with those found at the crime scene. The police learned a short time later that none of the hair samples taken from the Oleson residence belonged to an individual of Carter's race, African-American. As of this date, Carter was one of about eight suspects in the homicide.

Carter did not emerge as the prime suspect until April 8, 1985, when his wife sought legal advice from Deputy Utah County Attorney Sterling Sainsbury and private attorney Robert Orehoski. On the morning of April 8, Anne Carter approached Sainsbury, whom she knew through her position as a clerk for the juvenile court, and told him that she thought her husband had been involved in the Oleson murder. According to Sainsbury, Anne Carter suspected that her missing handgun, a .38 special, was the murder weapon and she showed Sainsbury the receipt for its purchase. She feared that she would be implicated as an accessory to the crime because she owned the handgun and it was improperly registered. Finally, she mentioned that some of Carter's clothes appeared to be bloodstained.

Sainsbury informed her that he was not her lawyer and that as a Deputy Utah County Attorney, he had a duty to report her story to the County Attorney's Office. He then advised her to meet immediately with a private attorney and come forward with the information voluntarily. Early that afternoon, Sainsbury sought out the prosecutor assigned to the Oleson case, Deputy Utah County Attorney Wayne Watson, and related Anne Carter's statements.

Anne Carter then approached Robert Orehoski, a private attorney who was representing her in a divorce action. Coincidentally, Watson was Orehoski's private law partner. Anne Carter told Orehoski that Carter had given her information about the Oleson murder and that she was worried the missing handgun would be traced to her. Orehoski recommended that she seek a conditional grant of immunity in exchange for her information.

The parties dispute what occurred at this point. The State claims that Anne Carter agreed to Orehoski's proposal and requested that he contact the County Attorney's Office. According to the State, Orehoski then contacted Watson and, without revealing Anne Carter's identity, described the proposed deal of conditional immunity in return for information. Watson accepted the proposal and produced a signed, handwritten conditional grant of immunity which he gave to Anne Carter in exchange for her information. Carter, on the other hand, asserts that Orehoski invited Watson into his office to question Anne regarding Carter's involvement in the murder. Carter further asserts that Anne did not understand why Orehoski wanted her to speak with Watson, but she acquiesced because of Orehoski's representation regarding the conditional grant of immunity. As a result of Anne's disclosure, Carter claims that the focus of the investigation shifted from Orla Oleson to Carter.

Pursuant to Anne Carter's consent, Provo police officers searched the Carter home, hoping to discover the missing handgun. Although they did not find the weapon, they discovered several articles of clothing that appeared to be bloodstained. The officers then requested, and Anne Carter signed, a new consent warrant permitting police to search for and seize any article of evidentiary value. A search warrant was simultaneously obtained from the local circuit court. Pursuant to these new warrants, the officers seized several articles of bloodstained clothing and copper-jacketed .38 caliber ammunition similar to that used in the homicide.

Later that day, Anne Carter met with Provo police officers to give a formal statement. At first, she refused to recount the information she had given to Watson and Orehoski. However, she grew more cooperative when a new officer was assigned to take her statement and, after some hesitation, provided the following account of Eva Oleson's murder. On the evening of February 27, 1985, Carter went to visit his friend, Epifanio Tovar. While at the Tovar residence, Carter met two of Tovar's friends. One of the men was a recently escaped convict who held a grudge against Provo Police Chief Swen Nielsen, a relative of Eva Oleson. The three men decided to go to the Oleson residence and steal Mrs. Oleson's gold necklace. On arriving at the Oleson home, Carter waited in the car while the other two men knocked on the door and entered. Carter did not know that Mrs. Oleson had been murdered until the men returned with blood on their clothing and one of them said "she's dead." Carter also told Anne that he got Mrs. Oleson's blood on his clothes when he reached out and pulled one of the men into the car.

As a result of the information received from Anne Carter, the police identified several witnesses, including Epifanio and Lucia Tovar. The Tovars gave a very different account of the murder, stating that...

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