Questions keep 18-year-old Myrtle Beach rape case alive for family

dwren@thesunnews.comOctober 21, 2012 

  • More information Battling for justice Part 2 of a two-part series. To read Part 1, go to www.MyrtleBeachOnline.com

— In the nearly two months after the report of a Dec. 3, 1994, sexual assault at the Byrd’s Nest motel here, court testimony and interviews show city police never identified, investigated or interviewed any suspects before arresting Robert Carter – with their only break in the case coming after the victim said she recognized Carter’s voice from a trio of obscene telephone calls she received.

“The case was stagnant until the phone calls came,” Robert Starr, a former Myrtle Beach police detective and the lead investigator on the case, told The Sun News last week. “We would never have caught him [Carter] if he hadn’t started making those phone calls.”

Now – more than 16 years after Carter was convicted in a 1996 trial, largely on the basis of DNA evidence that defense lawyers and others say might have been planted – a review by The Sun News of court testimony, depositions and police incident reports shows there were others who could have been considered suspects in the sexual assault, but were never interviewed.

The possible suspects, mentioned during a deposition of the victim – Millie Dougherty – in a related civil lawsuit, are among several evidentiary issues court documents have raised about the assault that put Carter in prison for life, including:

•  A tape recording of the obscene telephone call was termed “highly suspicious” by a defense lawyer an audio expert hired by Carter’s family.

•  There were discrepancies over when, or whether locks had been changed at the Byrd’s Nest motel, either before or after the attack.

•  Dougherty initially did not recognize the rasping voice on obscene calls as Carter, although she knew him and his family well and had a Christmas dinner at their home weeks after the assault took place.

The Sun News usually does not identify sexual assault victims. However, Dougherty spoke about the assault at length with the newspaper earlier this year and gave the newspaper permission at that time to use her name. She also has spoken publicly about her case as an advocate for sexual assault victims.

Dougherty declined to revisit Carter’s claims for this article.

“I think in many ways, this is something that has already been responded to by the criminal justice system,” she said.

Similar assault near The Lighthouse

Dougherty told police that an intruder broke into her apartment at the motel, placed a pillowcase partially over her head and then forced her to perform oral sex. Dougherty later told police that her attacker held a knife to her throat during the assault. The attack took place about 5:30 a.m. on Dec. 3, 1994. Dougherty said she received three telephone calls over the next two months in which her attacker taunted her about the crime.

The last call – about 1:30 a.m. on Feb. 1, 1995 – was recorded by Dougherty and traced to a public pay phone along Ocean Boulevard near The Lighthouse motel, where Carter was living with his girlfriend.

Starr said Dougherty was able to connect the dots and recognize Carter’s voice once she learned where the call had been placed.

The beach behind The Lighthouse motel was the scene of a similar sexual assault about a week before that phone call, on Jan. 24, 1995. A woman told police that she was walking on the beach about 3:45 a.m. when a man placed a knife to her throat and demanded money. He then sexually assaulted her before running away.

The suspect in that case was black; Carter is white.

Police never investigated the Jan. 24, 1995, assault because the woman said she did not want to be involved in the prosecution if a suspect were located, according to a police incident report.

Police did not draw any links between that sexual assault near The Lighthouse motel, the telephone call placed at a pay phone near the motel and the sexual assault two months earlier at the Byrd’s Nest, located about a block away.

The Jan. 24, 1995, assault that took place near The Lighthouse motel was reported in The Sun News. Dougherty – on the answering machine recording that included the obscene telephone call – can be heard during a separate call talking to a local rape crisis counselor about that news report. Dougherty asked the counselor whether police had reported the assault to the center and whether the woman had gone to the hospital following the assault.

No other suspects identified

Carter had moved to The Lighthouse by the time the final telephone call was placed, but he was living in an apartment located more than a mile away from the Byrd’s Nest when Dougherty reported her assault there.

Carter’s girlfriend testified at trial that Carter fell asleep in their bed at about 4 a.m. on Dec. 3, 1994, after a night of drinking and partying with some friends at his apartment. She testified that Carter was in bed with her when she woke up at about 5:50 a.m., but she could not give him an alibi for the 5:30 a.m. assault because she was still sleeping at that time.

Prosecutor Julia Bass cast doubt on the girlfriend’s credibility – asking if she could remember such specific details about any other night, or just the one in which her boyfriend was accused of rape – and her testimony was downplayed in closing arguments. The girlfriend now is deceased and Bass did not return telephone calls seeking comments for this story.

Dougherty told Starr during a recorded interview that a male friend had called her hours before her sexual assault took place. Dougherty said the friend called at about 11 p.m. to see if she wanted to go out and then called again, drunk, at 3 a.m. – about 2 ½ hours before the attack. Dougherty said her friend was with another man whom she did not know, and she spoke with both men during the second telephone call.

When Starr began asking questions about the friend, Dougherty asked: “Are you going to interview him?”

Starr told her he had no plans to talk to the man.

Police also never investigated Robert Dale, a tenant at the Byrd’s Nest and a friend of the Carter family.

Dougherty had given Dale and Carter a ride home after a Christmas dinner at Carter’s father’s home in Garden City Beach about two weeks after the attack.

Dale – who died in 1998 – had gotten into trouble at the Byrd’s Nest motel shortly before Dougherty’s sexual assault when another female tenant complained he had gotten drunk and tried to break into her room. Dale was never charged with any crime. Dougherty did not mention that incident to Starr during her recorded interview and there is no record in incident reports that Dougherty told police about Dale. Dougherty said in a deposition taken in 1997 that she could not remember whether she told police about the incident.

Dougherty also had given Dale a master key to the motel, according to her deposition.

There also was a maintenance man at the motel that Dougherty said she had to evict one month before the attack. The maintenance man – who fit the description Dougherty gave of her attacker – had been given free rent in exchange for his work, and Dougherty said during the deposition that he “wasn’t doing what he was supposed to be doing.”

Dougherty did not elaborate.

“Well, I mean, obviously he wasn’t happy to be leaving somewhere he had free room and board,” Dougherty said, but added that she would not term their disagreement “a heated argument.”

Myrtle Beach police knew about most of the individuals, but Starr told The Sun News last week he did not consider anyone a serious suspect until the telephone calls started.

Tape recording raises questions

Dougherty told police she bought an answering machine after the obscene phone calls started in an effort to catch the caller on a recording. When the caller dialed her number on Feb. 1, 1995, the conversation – in which the caller claimed to have videotaped Dougherty during a sex act – was caught on tape.

The telephone call lasted only a few seconds, but the micro-cassette tape Dougherty gave to police was more than 12 minutes long and included a mix of dial tones, background noise and other conversations – including the one Dougherty had with the rape crisis center about the assault near The Lighthouse motel.

The jury, however, only listened to the approximately 30-second telephone call and did not hear the rest of the tape that was given to police.

Steve Cain, a forensic tape expert and president of Applied Forensic Technologies International Inc., examined a copy of the tape recording for the Carter family in 1998. Cain said in his report that there are substantial “tape editing anomalies” on the recording which are “highly suspicious and suggestive of various methods of tape tampering.”

For example, Cain said acoustic noise and dial tones “are heard occurring simultaneously, which is not consistent with normal answering machine/telephone operations.”

He also stated that there are different audio frequencies on the tape and the apparent presence of an “open mike” during the initial phases of the recording, indicating that it might have been spliced together from different original recordings.”

Cain could not, however, definitively say the recording had been doctored.

Starr told The Sun News that he has no doubt the voice on the recording belongs to Carter.

“He didn’t speak at all during the whole trial, and my assumption is that he didn’t want the jury to hear his voice because they had listened to the tape,” Starr said. “He wouldn’t talk at all – not a peep.”

The key doesn’t fit

Starr said during the trial he believed whoever attacked Dougherty likely had a master key to the motel where she was living. Dougherty said she gave Carter’s father, Burke, a master key to the motel because he did odd jobs around the property and sometimes needed access to rooms.

Burke Carter testified at the trial that Dougherty gave him a master key in early 1994 because she was going out of town and wanted him to watch over the motel. Burke Carter said Dougherty gave him the key on a Friday and he gave it back to her the following Sunday. Dougherty said in the 1997 deposition that Burke Carter had the key for about one week.

Burke Carter testified he never had access to a master key after that one time.

Police recovered two keys from Robert Carter’s residence when he was arrested on Feb. 1, 1995.

Starr said during the trial that he believed one of the keys would unlock Dougherty’s motel apartment, and he immediately went to her motel to test the keys. When he arrived at the motel, however, Dougherty told Starr that all of the motel’s locks had been changed.

Starr said he tested both of Carter’s keys, but neither of them unlocked Dougherty’s door. Starr said he did not bother checking any of the motel’s other locks.

“Rather than going through the trouble of taking that key and testing and see if it would open up any lock of any of the rooms, you just took her word that, ‘Well, they’ve all been changed’, right?” Dean Mureddu, Carter’s public defender, asked Starr during the trial.

“That’s correct,” Starr replied.

While several of the motel’s locks had been changed, according to testimony from a locksmith, they were changed more than five months before the assault – and after Burke Carter had returned the master key. There was no documentation showing that all of the motel’s locks had been changed after the assault took place, according to trial testimony.

Dale testified that the lock on his unit was not changed from the time he moved to the Byrd’s Nest in 1991 until after Dougherty’s family sold the motel in 1995.

When Dougherty was asked at trial whether any of the motel’s locks had been changed after the assault, she stated that only one – the lock on her living room door – had been changed, on Dec. 4, 1994. She said all of the other locks remained the same, contradicting her statement to Starr on the day of Carter’s arrest.

Must be the voice of a stranger

Dougherty told police on the day of the attack that the rapist likely wasn’t anyone she knew “because she feels she would have recognized the voice,” according to Starr’s incident report. Dougherty also told Starr during a taped interview there was nothing at all familiar about her attacker’s voice.Mureddu questioned why Dougherty could not recognize Robert Carter’s voice – he had regularly spoken to her on the phone when going through the switchboard to reach his parents at the Byrd’s Nest and she had a Christmas dinner with Robert Carter and his family a few weeks after the assault.

“You were with him [Robert Carter] a couple of hours a couple of weeks after the incident, heard his voice, and you were calm and you didn’t recognize him, right?” Mureddu asked Dougherty during the trial.

“Yes, that’s right,” Dougherty responded. “But he was also not speaking the same way he spoke when he was assaulting me or the same way he spoke on the phone. He was yelling at me and whispering like in a hoarse voice. He wasn’t using the same tone of voice in a normal every day conversation as he was when he raped me.”

There were discrepancies in Dougherty’s reports about the telephone call she received from her male friend hours before the attack. Dougherty told Starr during the recorded interview that her friend called about 11 p.m., but she missed the call because she was out walking her dog.

“He actually left me a message on my answering machine, I was out walking my dog,” she said during the interview. “I came back in, heard about the tail end of it, went to pick up the phone and called him right back.”

During the trial, Dougherty said she went to bed at about 10 p.m. that night and had been asleep when her friend called, adding that “he woke me out of a dead sleep.”

A telling answer

Starr told The Sun News that several aspects of the crime pointed to an assault by someone Dougherty knew.

“Covering her head with a pillowcase – generally when someone blinds somebody when they commit a crime it’s because they know them,” Starr said. “She wasn’t physically beat up. It seemed like he was – I hate to use the word – but almost gentlemanly with her when he did it. It leads you to believe it’s someone that knows that person.”

Dougherty also reported to police that she asked her attacker if he was HIV-positive and he told her for certain that he was not.

“He said, ‘No, no, there’s no way . . . you don’t have to worry about that’,” Dougherty testified at Robert Carter’s trial.

Two months later, after Starr had arrested Robert Carter and interviewed him, Starr posed what seemed like an innocent question.

“We were about to walk out of the room, and I turned to him and I said: ‘By the way, are you HIV-positive?’,” Starr said during a court hearing before the trial. “And he said, ‘No.’ He was very positive about that.”

Starr asked Carter how he could be so sure.

“He said, ‘Well, I was tested’,” Starr testified.

Carter had been tested for HIV in October 1994 – about two months before the assault – because of his pending enlistment in the U.S. Marines.

“That drew a connection – she [Dougherty] asked a question that was answered and we asked a question that was answered the same way,” Starr told The Sun News. “That’s not something generally anybody can say for certain. If you asked me whether I was HIV-positive, I’d say, ‘I would think not because I’ve been married to the same woman for 25 years’. But he was certain he wasn’t HIV-positive.”

The missing saliva

Carter was convicted after a State Law Enforcement Division serologist said during the 1996 trial that she matched Carter’s blood sample to what she termed a “mixed stain” of semen and saliva left on a pillowcase after the assault. Other experts testified that they could not detect any semen on the pillowcase – they could only detect saliva.

Carter had given blood and saliva samples for SLED to test, however, his saliva sample disappeared in the week after it was taken at Grand Strand Regional Medical Center and before the samples were sent to the state agency.

Ted Yeshion – a DNA expert and founder of Cluefinders Inc. in Erie, Pa., which provides analysis and expert testimony during trials – said he thinks someone placed Carter’s saliva on the pillowcase to frame him.

“I cannot come up with a better explanation for how the findings in this case were presented,” said Yeshion, who has offered his services for free to Carter and any lawyer who can prompt a new trial. “At the very least, something is not right here.”

The importance of the missing saliva was never explained to Carter’s jury, and his public defender later admitted he was caught flat-footed by the disclosure – midway through the trial – that the saliva sample had vanished more than a year earlier.

Appeals courts have been unwilling to grant Carter a new trial, although he now is making a last-ditch effort for a second post-conviction relief hearing so the evidence can be reconsidered. If that fails, Carter’s next step is a direct appeal to the state Supreme Court.

A sign from God?

The hiring of appeals lawyers and defense experts over more than a decade has drained the Carter family’s finances, and Carter filed his own pro se application for a second post-conviction relief hearing in June 2009. That application – which alleged due process violations, prosecutorial misconduct and ineffective assistance of counsel – sat dormant until the state Attorney General’s office moved in September to dispose of the case.

In an order signed last month by Circuit Court Judge Steven John, the attorney general’s office stated that Carter does not deserve a new hearing because he simply is restating arguments that have already been settled by previous courts.

Carter has asked John to reconsider that decision, arguing that no court has properly considered evidence that he might have been framed for the crime. If that request fails, Carter’s next step could be an appeal to the state Supreme Court.

Rauch Wise, the lawyer who represented Carter in his previous state Supreme Court appeal, said the evidentiary problems are so overwhelming that he cannot believe Carter has not been granted a new trial by previous courts. However, Wise added that after 16 years in prison, Carter’s chances now are slim.

“It will take some new evidence to be uncovered,” he said.

Dougherty told The Sun News in March that she is certain Carter would rape someone else if he is ever set free and she vows to keep fighting his chances for parole.

Starr – the detective-turned-Catholic-deacon – told The Sun News that Carter “is in the place he needs to be,” adding that he believes a symbolic affirmation of Carter’s guilt occurred just as his initial trial had ended.

“At the end of the case, the judge lets the defendant say whatever they want to say, because now it’s time to pass sentence,” Starr said. “So, the judge told Carter, ‘If you have anything to say, now is the time to say it.”

The trial transcript shows Carter then stood before the judge and said: “I want to say what I have to say, that there’s no way in this world and if there’s a God in Heaven, I did not commit this crime. And I stand before this jury and before this court, and so help me God as my witness; I mean, they found me guilty of something I did not commit.”

“Just at that point, the loudest clap of thunder you ever heard shook the whole courtroom,” Starr said. “Everybody just hunched down in their chairs and went, ‘Ooh’.”

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