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Federal court judge denies Utah death row inmate's appeal

Published September 13, 2012 7:25 am

Courts • Douglas Stewart Carter was convicted in murder of Eva Olesen in 1985.
This is an archived article that was published on sltrib.com in 2012, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

A federal judge has denied a Utah death row inmate's attempt to get his case reconsidered, but more proceedings are likely.

U.S. District Judge Ted Stewart reviewed a dozen claims made by convicted murderer Douglas Stewart Carter in which he asserted state courts erred in deciding such issues as the effectiveness of counsel at his 1985 trial and admissibility of his confession.

Stewart found that state courts dealt fully and appropriately with Carter's case. While the Utah Supreme Court may have used "imprecise" language in some of its rulings on Carter's appeals, it properly applied legal standards and was reasonable in reaching its conclusions on each claim, he said.

On the issue of effectiveness of counsel, Stewart said that while there is "strong argument" that Carter's attorney was "deficient," the record did not show that met a prejudicial standard. Stewart also found that the Utah Supreme Court also made a reasonable determination in allowing Carter's confession to be used at trial.

Carter argued he did not recall being read his Miranda rights and claimed he was induced to confess by a promise that a friend with whom he stayed in Tennessee would not be criminally charged and or separated from her children. In two different decisions, the Utah Supreme Court found Carter's confession was made voluntarily.

Ken Murray, a federal public defender representing Carter, saidWednesday he was still analyzing the 119-page decision and would then "make a decision about what our options are."

Carter has about 30 days to file a notice of appeal with the 10th Circuit Court of Appeals. He also has cases pending in state district court and before the Utah Supreme Court that center on witness testimony given at his 1985 trial.

Assistant Attorney General Thomas Brunker called Stewart's decision a "significant step," but one that took far too long. Carter filed his federal case in 2002.

"We are glad that this is over, but it should not have taken 10½ years and in future cases we will take steps to shorten the process," Brunker said.

Carter was convicted of murdering Eva Olesen in her Provo home on Feb. 27, 1985. Olesen's hands had been tied behind her back with a telephone cord ripped from the wall. She was nude from the waist down and had been stabbed eight times in the back, once in the abdomen and once in the neck with a kitchen knife. A medical examiner said Olesen, 57, was still alive when she was fatally shot in the back of the head.

Several weeks later, Carter emerged as one of eight suspects in the murder and then quickly became the prime suspect after his then-wife shared information about his possible involvement with the Utah County Attorney's Office. Carter was arrested on June 11, 1985, in Nashville.

A day later, Carter signed a confession after being interviewed by a Provo police officer and was extradited back to Utah. Carter later said the confession was coerced and that while his signature appeared at the bottom of the confession, claimed it was not the document he'd signed.

In that confession, Carter said he'd knocked at Olesen's door and that just as Eva Olesen opened it, the phone rang and she went to answer it. Carter said he walked into the home and when she came back he pointed a gun at her and demanded money. Olesen gave him about $20 and then tried to flee out the back door. When Carter stopped her, she picked up a kitchen knife. He pointed the gun at Olesen and told her to drop it. He then took her into a back room, tied her up and stabbed her.

Carter said he then went through the house looking for other items to steal before returning to the back room and shooting Olesen in the head.

Epifanio and Lucia Tovar, friends of Carter, later testified during trial that Carter had left their home the night of the murder planning to "rape, break and drive" and, after returning to their home, said he had killed a woman by stabbing and shooting her. The statements were the only corroborating evidence offered by police, who had no forensic evidence linking Carter to the crime. Epifanio Tovar said Carter later asked him to get rid of a .38 caliber firearm, and he had complied.

At his first trial in 1985, a jury unanimously found Carter guilty of first-degree murder and that aggravating circumstances existed, which made him eligible for the death penalty. On Dec. 19, 1985, the jury sentenced Carter to death.

Over the subsequent 27 years, Carter made various appeals to get the verdict and sentence overturned, arguing, among other things, that his confession was coerced and should have been suppressed; that the prosecutor had tainted the jury by indirectly commenting on his decision to not take the witness stand in his own defense; and that his counsel had been ineffective.

The Utah Supreme Court rejected all but one issue raised by Carter — that jury instructions were flawed — and, based on that finding, ordered Carter to be re-sentenced. At that 1992 penalty hearing, Carter took the stand and apologized to the Olesen family, his own family and asked the jury to spare his life. His counsel also presented mitigating evidence he'd suffered racial discrimination and had some brain dysfunction due to falls that was exacerbated by substance abuse. But the jury's verdict was the same: death.

Once again, Carter appealed, but the Utah Supreme Court affirmed the conviction and sentence. A state district court also rejected Carter's appeals for post-conviction relief and that triggered another appeal to the Utah Supreme Court, which again rejected his claims.

More recently, Carter has filed appeals claiming the Tovars' testimony was tainted by aid they received from Provo Police, including rent and utility payments, groceries, toys for their child and a Christmas tree.

The victim's son, Gary Olesen, who was 16 years old when his mother was murdered, has on several occasions petitioned the courts under the Crime Victims' Rights Act for a resolution of the case.

brooke@sltrib.com