State of Utah v. Bakalov
Annotate this Casepublication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
State of Utah,
Plaintiff and Appellee,
v.
Bojidar Georgiev Bakalov,
Defendant and Appellant.
No. 940523
F I L E D
May 11, 1999
1999 UT 45
---
Third District, Salt Lake Div. I
The Honorable Michael R. Murphy
Attorneys:
Jan Graham, Att'y Gen., Christine
Soltis, Joanne C. Slotnik, Asst. Att'ys Gen.,
Salt Lake City, for plaintiff
Bojidar Georgiev Bakalov, pro se(1)
---
STEWART, Justice:
¶1
Defendant Bojidar Georgiev Bakalov
appeals his conviction of rape, a first degree felony. Bakalov was convicted
on August 9, 1991, in a bench trial. He was represented by court-appointed
counsel. That conviction was set aside because he had been denied his constitutional
right to present his own defense. See State v. Bakalov, 849 P.2d 629, 637 (Ct. App.),
cert. granted and remanded, 862 P.2d 1354,
1355 (Utah) (per curiam), enforced, 864 P.2d 1370 (Ct. App. 1993)
(per curiam) (remanding to trial court). On retrial, Bakalov represented
himself and was convicted by a jury on September 29, 1994. Bakalov now
appeals that conviction. We affirm, but remand for resentencing consistent
with this opinion.
I. BACKGROUND
¶2
Bakalov is a thoracic surgeon who
came to Utah from Bulgaria to complete a fellowship at the University of
Utah. Lauren J. worked as a secretary for The Church of Jesus Christ of
Latter-day Saints (the LDS or Mormon Church) and served as an LDS stake
missionary. Bakalov met Lauren around the first of April, 1991, through
Lauren's roommate and fellow stake missionary, Deanna Ludlow, who had volunteered
Lauren to type for Bakalov. Hoping to convert Bakalov to Mormonism, Lauren
agreed to type for Bakalov for free.
¶3
During the next week, Bakalov went
to Lauren's apartment several times for typing sessions. Lauren liked Bakalov
and found him interesting, a "man's man." She was impressed by his professional
accomplishments and appears to have been romantically interested in him
as well. On Saturday, April 6, Bakalov went to Lauren's apartment in the
late afternoon, and when Deanna and others left the apartment, Bakalov
kissed Lauren on the neck and made other advances to her that she rejected.
Soon thereafter, Lauren took Bakalov next door to introduce him to her
Russian neighbors, and she waited for about an hour while Bakalov and the
neighbors conversed in Russian.
¶4
When they left the neighbors' apartment,
Bakalov suggested a drive in his truck. Lauren agreed because she was interested
in seeing the medical dictionary on Bakalov's office computer. They did
not stop at Bakalov's office, however, but drove to a secluded spot near
the university. Bakalov again tried to kiss Lauren, but Lauren again refused.
She wedged herself under the dash on the floor of the truck's cab, and
when Bakalov persisted, she left the truck and started walking away. Bakalov
pursued her, picked her up, and, despite her struggles, carried her back
to the truck's open tailgate.
¶5
Lauren crawled inside the truck's
camper shell, and Bakalov followed. He removed both of their shoes and
tried to kiss her. Lauren braced herself, asked Bakalov repeatedly to stop,
and pleaded that he not rape her. He removed Lauren's clothing, including
her religious garments, which he mocked, fondled her, and then raped her.
As he did so, Lauren prayed out loud for him to stop. She felt disoriented.
Lauren dressed and returned to the truck's cab. Bakalov demanded that she
talk, and in a rambling monologue, she related a string of violent images.
When they returned to her apartment, Deanna thought Bakalov and Lauren
sounded as though they were in a "light and laughing mood." Lauren packed
Bakalov's things while he told Deanna that Lauren had been teaching him
how to pray.
¶6
The next morning, as previously
planned, Lauren went to an LDS Church general conference with friends.
Her friends had invited Bakalov and his mother to join them, and at their
urging, Lauren called Bakalov to see if his mother still planned to go.
Bakalov declined. When he asked if he could see her again, Lauren said
no and hung up the telephone. Bakalov went to Lauren's apartment that night
and, after a discussion, offered Lauren birth control medicine which she
refused. Lauren then told Deanna, and later her church bishop, of her rape.
On Tuesday, April 9, nearly 72 hours after the incident, she reported the
rape to the police and was given a "Code R" or rape medical examination.
Semen containing intact sperm was found in her vagina. Seminal fluid stains
were also found in the crotch of her garments and on her skirt.
¶7
When Bakalov was first questioned
regarding the rape by Detective Allen, Bakalov evinced a willingness to
discuss the alleged rape. Detective Allen terminated the interview because
he could not understand Bakalov's English. Bakalov then contacted attorney
Edward K. Brass whom he knew from their weight lifting together at a local
gym. Brass advised Bakalov against speaking with the police and then called
Detective Allen to instruct him not to talk to Bakalov. When police came
to arrest Bakalov, he fled and hid in his apartment for thirty minutes.
Brass represented Bakalov only briefly. Both Detective Allen and attorney
Brass were called by the State to testify in the second trial--Brass to
describe Bakalov's physical strength and Allen to recount the events surrounding
Bakalov's arrest. In his testimony, Allen mentioned his telephone call
from Brass.
¶8
Lauren initially reported that Bakalov
had raped her only once. After a nightmare a few days later, however, Lauren
remembered that a second incident of intercourse had occurred in succession
to the first. She also recovered a memory regarding duct tape. At trial,
Bakalov first denied any intercourse with Lauren but then later alleged
that they had had consensual intercourse several times during the week
preceding April 6. He claims that on the night of the alleged rape he had
consensual oral sex with Lauren, but no intercourse. He insisted, moreover,
that Lauren, who had psychiatric problems, had become pregnant by an unidentified
boyfriend and then accused Bakalov of rape to avoid excommunication from
her church.
¶9
The Legal Defenders Association
(LDA) was appointed to represent Bakalov in his first trial. Bakalov objected
to LDA representation because it is state-funded. On appeal, this Court
overturned Bakalov's conviction, holding that Bakalov had been deprived
of his Sixth Amendment right to self-representation. State v. Bakalov,
862 P.2d 1354, 1354-55 (Utah 1993) (per curiam). After remand, the trial
court, Judge Richard H. Moffat, attempted to conduct a Frampton
colloquy with Bakalov to assess whether he unequivocally and knowingly
waived his right to assistance of counsel. Bakalov refused to answer the
court's questions and insisted that he be assigned non-LDA or out-of-state
counsel. LDA-conflicts counsel was appointed but soon withdrew because
Bakalov refused to cooperate. Judge Moffat then permitted Bakalov to defend
himself and appointed standby counsel. Judge Michael R. Murphy took over
the case, substituted new standby counsel, and, after several aborted attempts,
held a successful Frampton colloquy with Bakalov. Judge Murphy allowed
Bakalov to proceed pro se, assisted by standby counsel.
¶10
At trial, Bakalov moved to compel
cross-testing of the Code R semen sample with his blood. The trial court
granted the request subject to Bakalov's first submitting a sample of his
blood to the State. When Bakalov refused, the motion was denied. Additionally,
the court rejected Bakalov's request to call an expert witness to testify
that intact sperm could not be found 72 hours after intercourse. Also during
trial, the court cut short Bakalov's cross-examination of Deanna Ludlow,
who had a plane to catch, because, in its view, Bakalov's questions had
become irrelevant, time consuming, and harmful to his case. Only two LDA
investigators testified for Bakalov because he did not timely submit a
list of witnesses and because the list, when submitted, was grossly incomplete,
listing such names as "boyfriend," "heart attack," and "Joe Neighbor."
The jury in the second trial rejected all Bakalov's defense claims and
convicted him as charged. The court sentenced Bakalov to the same prison
term imposed on him following his first conviction. In addition, the court
recommended to the Board of Pardons that Bakalov never be paroled and imposed
a $10,000 fine.
¶11
Following the second trial, Lauren
spoke with a Salt Lake City newspaper reporter about her rape, her childhood
sexual and physical abuse, and her mental health. She told the reporter
that she had been diagnosed by her therapist, Dr. Judith Brady, with multiple
personality disorder, now known as dissociative identity disorder (DID),
(2)and described the nature of her multiple
personalities and her therapy. Lauren authorized the reporter to speak
with Dr. Brady about her therapy. See Katharine Biele, Soul Asylum,
A woman with multiple personalities tries to piece together reality after
rape, Private Eye Weekly, May 25, 1995, at 7. Lauren acknowledged that
the information published in the reporter's article was accurate. The therapist
stated that Lauren suffered from DID prior to the alleged rape, but did
not recognize her illness until she sought post-trauma counseling. Characteristics
of DID include amnesia and memory gaps that are often later filled in and
symptoms caused by two or more personalities, each with its own behavior
patterns and memories, competing for dominance within the patient.
¶12
Dr. Brady informed the prosecutor
before the second trial of Lauren's diagnosis. Further, she gave the prosecutor
a 3 x 5 card with questions to use in his direct examination of Lauren
to keep Lauren focused. She also arranged for Lauren to telephone her two
or three times a day during the duration of trial. The prosecutor did not
communicate information about the DID diagnosis to the defense. Bakalov,
however, knew before trial that Lauren suffered some psychiatric infirmities.
He knew of her counseling, and claimed as a basis of his defense that Lauren
was unstable. Prior to trial, Bakalov moved the court to order a psychiatric
examination of Lauren. The court granted this request in part, agreeing
to appoint a state-paid forensic psychiatrist of Bakalov's choice. The
court also granted Bakalov increased access to a prison telephone so that
he could arrange for an expert. Bakalov never informed the court of his
chosen expert. Nor did he request the medical records of Lauren's counseling
or otherwise investigate his suspicion that Lauren suffered from mental
illness. The prosecutor also failed to disclose excerpts from two journals
written by Lauren and containing information pertinent to the rape.
¶13
Bakalov moved for a new trial based
on this non-disclosed evidence. The trial court denied the motion, and
Bakalov now appeals both his conviction and the denial of his motion for
a new trial. On appeal, Bakalov raises several claims of error. Specifically,
he contends (1) that he was deprived of the right to assistance of counsel
because he did not unequivocally and knowingly request self-representation;
(2) that the trial court erred in denying his motion for new trial because
due process required disclosure of the DID evidence and journal extracts;
(3) that he was denied due process and a fair trial when not given an opportunity
to test the Code R semen sample; (4) that the prosecutor committed reversible
misconduct in statements made during closing argument to the jury; (5)
that the court improperly permitted the State to call as a witness his
former counsel and to elicit testimony from Detective Allen concerning
Bakalov's exercise of his post-arrest rights to counsel and silence; (6)
that he was denied a fair trial because his requested witnesses were not
subpoenaed, he could not call an expert to testify that sperm could not
remain intact 72 hours after intercourse, and the court curtailed his cross-examination
of State witness Deanna Ludlow; and (7) that the court erred in sentencing
him more severely after his second conviction than after his first conviction.
We address each claim in order.
II. BAKALOV'S RIGHT TO ASSISTANCE OF COUNSEL
¶14
Bakalov's first contention of error
is that his Sixth Amendment right to the assistance of counsel was violated
because he did not unequivocally request self-representation and did not
voluntarily, knowingly, and intelligently waive the right to counsel. We
do not agree.
¶15
The Sixth Amendment of the United
States Constitution guarantees each criminal defendant the right to assistance
of counsel. See State v. Frampton, 737 P.2d 183, 187 (Utah
1987). It is well established that the Sixth Amendment also grants an accused
the fundamental right to defend him- or herself in person. See Faretta
v. California, 422 U.S. 806, 818-21 (1975);
Frampton, 737 P.2d
at 187 & n.6; State v. Hamilton, 732 P.2d 505, 507 (Utah 1987)
(per curiam).(3) These mutually exclusive
rights must be construed in harmony with each other as far as possible.
See Faretta, 422 U.S. at 820-21. Because a defendant's choice
of self-representation often results in detrimental consequences to the
defendant, a trial court must be vigilant to assure that the choice is
freely and expressly made "with eyes open." Id. at 835 (internal
quotation omitted); see Frampton, 737 P.2d at 187;
Bakalov,
862 P.2d at 1355.
¶16
To invoke the right of self-representation,
a defendant must in a timely manner "'clearly and unequivocally'" request
it. United States v. McKinley, 58 F.3d 1475, 1480 (10th Cir. 1995)
(quoting United States v. Reddeck, 22 F.3d 1504, 1510 (10th Cir.
1994)). The requirement that a defendant make an explicit request ensures
that the defendant will not unthinkingly waive the right to counsel through
sporadic musings or, on appeal, mischaracterize statements he made in the
trial court and claim that he was denied the benefit of counsel if he proceeded
pro se, or that he was denied the right to self-representation if he was
represented by counsel. See Adams v. Carroll, 875 F.2d 1441,
1444 (9th Cir. 1989). If a defendant equivocates in his request to represent
himself, he is presumed to have requested the assistance of counsel. See
Johnson v. Zerbst, 304 U.S. 458, 464 (1938). A defendant's assertion
of the right of self-representation must be voluntary, the product of a
free and meaningful choice. See Frampton, 737 P.2d at 187.
¶17
These requirements that the request
to represent one's self be definite and voluntary do not mean, however,
"that [a defendant's] decision to waive counsel must be entirely unconstrained."
Wilks v. Israel, 627 F.2d 32, 35 (7th Cir. 1980). "'A criminal defendant
may be asked, in the interest of orderly procedures, to choose between
waiver [of counsel] and another course of action as long as the choice
presented to him is not constitutionally offensive.'" Id. (quoting
United States v. Davis, 604 F.2d 474, 485 (7th Cir. 1979)).
¶18
After we remanded Bakalov's case
for a second trial, the district court appointed counsel for Bakalov, who
is indigent. Counsel was competent and conflict-free. Bakalov refused to
cooperate with assigned counsel, however, and counsel was compelled to
withdraw. Bakalov repeatedly insisted that the trial court appoint new
counsel from outside the court's jurisdiction and with no association with
the LDA. He also insisted that appointed counsel have no contact with the
prosecutor, discuss no possibility of plea bargain or deportation to resolve
the case, and strictly follow tactics dictated by Bakalov.
¶19
Faced with these demands, the trial
court presented defendant with the choice of either accepting representation
by the attorney who had previously acted as standby counsel or defending
himself. Bakalov elected to defend himself. We hold that the options offered
defendant were constitutionally permissible and that his choice, however
reluctant or conditional, was voluntary and unambiguous.
¶20
A defendant cannot be forced to
proceed with incompetent counsel or counsel having a conflict of interests:
"[A] choice between proceeding with incompetent counsel or no counsel is
in essence no choice at all." Wilks, 627 F.2d at 36. Requiring a
defendant to choose between self-representation and some other course of
action does not always enable a defendant to make a totally voluntary decision.
"If a choice presented to a petitioner is constitutionally offensive, then
the choice cannot be voluntary." Id. However, if the defendant's
options are constitutionally sound, the choice between alternatives is
voluntary. See id. In this case, Bakalov does not contest
the qualification or impartiality of appointed counsel. Rather, his displeasure
with counsel stemmed only from his distrust of lawyers associated with
the State. We have clearly held, however, that an indigent defendant "does
not have an immutable right under the sixth amendment of the United States
Constitution or under our state constitution to reject court-appointed
counsel for the purpose of forcing the court to appoint private counsel
of his own choice to represent him, absent a showing of good cause for
such a change." State v. Wulffenstein, 733 P.2d 120, 121 (Utah 1986)
(per curiam). Defendant's unsubstantiated fears that LDA or Utah-based
attorneys could not fairly represent him is not "good cause" justifying
a change in attorneys.(4) See id.
Thus, Bakalov was "not entitled to pick and choose" his court-appointed
counsel "by either the process of an affirmative demand or the selective
elimination of other attorneys." Id. at 121-22. The alternatives
given Bakalov by the trial court--to accept representation by competent
counsel as already provided or represent himself--were constitutionally
acceptable, and Bakalov's choice was voluntary.(5)
¶21
Bakalov's choice was also decisive.
Bakalov made his intention clear ever since remand for a new trial that
he wanted to represent himself if the only alternative was representation
by appointed counsel. Moreover, his intermittent demands for other counsel
stemmed from that same consistent position. "That [the defendant] did not
particularly like the choice presented to him [to defend himself or accept
representation by appointed counsel] and that he did not want to proceed
pro se are not sufficient reasons to render the choice constitutionally
offensive." Wilks, 627 F.2d at 36. We hold that Bakalov's election
to defend himself was clear and unequivocal.
¶22
We must next assess whether defendant
"knowingly and intelligently" waived his right to assistance of counsel.
Faretta v. California, 422 U.S. 806, 835 (1975). An accused's decision
to represent himself necessarily is a waiver of the right to counsel. See
Frampton, 737 P.2d at 187. Whether a waiver is knowing and voluntary
"turns upon the particular facts and circumstances surrounding each case."
Id. at 188. Additionally, when, as here, a defendant expressly declines
an offer of appointed counsel, "he has the burden of showing by a preponderance
of the evidence that he did not so waive this right." Id. at 187.
We conclude that Bakalov has failed to meet this burden.
¶23
It is the trial court's duty to
determine whether a defendant's waiver of the right to counsel was knowing
and intelligent. See id. To this end, we have recommended
that the trial court conduct an on-the-record colloquy with the accused
in which the court should fully inform the accused "of the dangers and
disadvantages of self-representation, so that the record will establish
that he knows what he is doing and his choice is made with eyes open."
Id. (citing Faretta, 422 U.S. at 835 (internal quotations
omitted)); see also id. at 187 n.12. The court should also
carefully evaluate the accused's background, experience, and conduct insofar
as they indicate what the accused understands in attempting to waive the
right to counsel. See id. at 188. The trial court must ensure
that the accused comprehends the risks of self-representation and that
he relinquishes the benefits of representation by counsel.
¶24
In remanding this case for a second
trial, we specifically directed the trial court to conduct the recommended
colloquy on the record with Bakalov to ensure "that he understands the
risks of self-representation and thereby waives his constitutional right
to assistance of counsel." Bakalov, 862 P.2d at 1355. The trial
court complied with our instruction. On remand, the case was assigned to
Judge Richard H. Moffat, who attempted to conduct a Frampton colloquy
with Bakalov. Bakalov, however, doggedly refused to answer the court's
questions, insisting that he wanted non-LDA or out-of-state counsel. To
best accommodate Bakalov, the court appointed LDA-conflicts counsel Kenneth
R. Brown. Bakalov accepted Brown as his counsel only so long as Brown conformed
to Bakalov's tactical demands, but two months later Brown moved to withdraw
as counsel because Bakalov refused to cooperate with him. In ruling on
Brown's motion, Judge Moffat again attempted a Frampton colloquy
and, again, Bakalov refused to answer questions. Given Bakalov's unwieldy
obstinence, the court expressed concerns about Bakalov's competence to
waive the right to counsel, but ultimately concluded that Bakalov's rejection
of Brown indicated a knowing waiver. Brown was permitted to withdraw, and
standby counsel Charles Lloyd was appointed.
¶25
Judge Michael R. Murphy next took
over the case, allowed Lloyd to withdraw, and appointed Joseph Fratto,
who is LDA-conflicts counsel, as new standby counsel. Judge Murphy reviewed
videotaped hearings of Bakalov before Judge Moffat and concluded that Bakalov
was competent to knowingly waive his right to counsel.(6)
Judge Murphy then attempted another Frampton colloquy with defendant.
Before the colloquy, Bakalov refused the choice offered to him by the court
either to accept Fratto as his direct counsel or to defend himself. Bakalov
also again refused to answer the court's Frampton inquiries. The
court attempted colloquies in three subsequent hearings before Bakalov
finally complied. Based on Bakalov's answers in that final, successful
colloquy, the court found that defendant knowingly and intelligently waived
his right to assistance of counsel.
¶26
We conclude that the trial court
did not err in making this determination. The court's colloquy with Bakalov
was thorough. Moreover, the court was able to interact with and observe
defendant at length. Bakalov was psychologically examined and determined
to be competent, he was highly educated, he had completed a trial and an
appeal with counsel on the same charge, and he had submitted numerous pro
se motions to the court asserting rights or requesting materials to aid
him in representing himself--all indicating his ability to knowingly waive
his right to counsel. The court did not coerce defendant into representing
himself. Finally, consistent with our remand instructions, the court appointed
standby counsel to preserve defendant's right to representation and to
preclude lack of waiver claims on appeal.
¶27
Given the above, we affirm the trial
court's holding that defendant's waiver was knowing and intelligent. Defendant's
Sixth Amendment right to assistance of counsel was effectively waived.
III. THE PROSECUTOR'S NONDISCLOSURE OF EVIDENCE
¶28
Bakalov moved for a new trial on
the ground that the prosecutor failed to disclose to the defense evidence
that Lauren suffered from DID that Bakalov could have used to impeach Lauren's
testimony. After an evidentiary hearing in which Lauren's counselor testified
to her opinion of Lauren's mental state and a psychologist testified as
to the symptoms of DID, the trial court denied the motion. Bakalov appeals
the denial. We review the legal standards applied by the trial court for
correctness. Otherwise we review a trial court's denial of a motion for
new trial under an abuse of discretion standard. SeeCrookston v. Fire
Ins. Exchange, 860 P.2d 937, 940 (Utah 1993);
State v. James,
819 P.2d 781, 793 (Utah 1991).
¶29
Bakalov maintains that the State
intentionally suppressed evidence that Lauren suffered from DID. The State
admits that the prosecutor did not disclose to Bakalov that Dr. Brady,
Lauren's psychological counselor, thought Lauren suffered from DID; however,
the State argues that the DID evidence was not constitutionally material
to the events of the rape and that nondisclosure did not violate Bakalov's
right to due process under Brady v. Maryland, 373 U.S. 83 (1963).
A. Prosecutorial Nondisclosure of DID Evidence
¶30
It is fundamental that the prosecution
has a constitutional duty under both the Utah and United States Constitutions
to disclose material, exculpatory evidence to the defense. Suppression
of evidence favorable to the defense "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." Brady, 373 U.S. at 87; see
also State v. Jarrell, 608 P.2d 218, 224 (Utah 1980). This is
true irrespective of whether the defense requests the favorable evidence,
see United States v. Bagley, 473 U.S. 667, 682 (1985);
State
v. Carter, 707 P.2d 656, 662 (Utah 1985), or whether the evidence is
substantively exculpatory or solely of impeachment value, see Giglio
v. United States, 405 U.S. 150, 154-55 (1972);
Bagley, 473 U.S.
at 676.
¶31
Evidence is constitutionally material
"if there is a reasonable probability" that the "result of the proceeding
would have been different had the evidence been disclosed to the defense."
Bagley, 473 U.S. at 682. In Kyles v. Whitley, 514 U.S. 419,
434 (1995) (emphasis added), the United States Supreme Court stated:
Bagley's touchstone
of materiality is a "reasonable probability" of a different result,
and the adjective is important. The question is not whether the defendant
would more likely than not have received a different verdict with the evidence,
but whether in its absence he received a fair trial, understood as a trial
resulting in a verdict worthy of confidence.
The test, therefore, is not whether
the defendant would have been acquitted had the evidence been disclosed,
but whether the prosecutor's suppression "'undermines confidence in the
outcome of the trial.'" Id. (quoting Bagley, 473 U.S. at
678).
¶32 .
Evidence showing a witness's inability
to accurately perceive, recall, or relate events at issue in a trial may
be crucial to establishing the truth. See United States v. Butt,
955 F.2d 77, 84 (1st Cir. 1992); see also United States v. Partin,
493 F.2d 750, 762 (5th Cir. 1974). Evidence of mental illness is material
when it "may reasonably cast doubt on the ability or willingness of a witness
to tell the truth." United States v. Smith, 77 F.3d 511, 516 (D.C.
Cir. 1996). Nondisclosure of evidence that reasonably casts doubt on a
witness's veracity and ability to perceive and recall accurately when the
prosecution rests much of its case on that witness's testimony may result
in a "reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different." Bagley,
473 U.S. at 682. A prosecutor must disclose to the defense psychological
evidence regarding a government witness whenever that evidence can substantially
affect defense counsel's ability to impeach the witness. See Smith,
77 F.3d at 515-17; United States v. Lindstrom, 698 F.2d 1154, 1166
(11th Cir. 1983).
¶33
Following the first trial in September
1991 and prior to the second trial in September 1994, Lauren sought psychological
counseling from Dr. Judy Brady, a private therapist who held a doctorate
in social work. Without any evaluative testing, Dr. Brady formed the opinion
that Lauren suffered from DID. That opinion was based on Lauren's self-reporting
and criteria stated in the Diagnostic and Statistical Manual of Mental
Disorders, 3rd Edition (DSM-III). Dr. Brady stated that in one therapy
session, Lauren, while discussing the rape that is the subject of this
case, experienced a "spontaneous flashback" in which she recalled some
kind of sexual abuse in her childhood. Dr. Brady concluded that the "personality"
relating the childhood abuse was a personality other than Lauren. Other
than this episode, Dr. Brady was not able to discern Lauren's "switching"
or changing from one personality to another.
¶34
The second trial occurred in September
1994. Prior thereto, in April or May 1994, Dr. Brady informed the prosecutor
that in Dr. Brady's opinion Lauren "might have multiples." Dr. Brady thought
that the prosecutor did not accept her opinion, and did not believe that
"I [Dr. Brady] was necessarily competent to make that assessment." Nevertheless,
the prosecutor reviewed the DSM-III criteria and asked Dr. Brady a number
of questions, including whether Lauren's recollection of the rape was any
different from that to which she had testified at the first trial. Dr.
Brady provided the prosecutor with a 3 x 5 card with instructions as to
techniques for keeping Lauren from dissociating while testifying at trial.
The prosecutor did not inform Bakalov of Dr. Brady's opinion that Lauren
had DID or that Dr. Brady had given the prosecutor the 3 x 5 card for use
in the examination of Lauren at trial.
¶35
In 1995, the year following Bakalov's
second conviction, Lauren was interviewed by a reporter about the rape,
her DID, and the prosecutor's knowledge of Dr. Brady's opinion. The reporter
wrote an article that appeared in the Private Eye Weekly. Based
on the article, defendant moved for a new trial. The trial court conducted
an evidentiary hearing and took extensive evidence from Dr. Brady and Dr.
Vicki Gregory, a Ph.D. psychologist, who testified as an independent expert
for defendant. Dr. Gregory testified as to evidence concerning the nature
and symptoms of DID. Dr. Brady testified to her opinion as to whether and
how DID may have affected Lauren and whether DID might have affected Lauren's
trial testimony.
¶36
The trial court found that the prosecutor
had not disclosed to defendant his knowledge of Dr. Brady's opinion concerning
Lauren's DID or the prosecutor's use of the 3 x 5 card provided by Dr.
Brady to guide the prosecutor in his examination of Lauren at the second
trial. Nevertheless, the trial court denied the motion for a new trial.
It ruled that the evidence did not show that Lauren was affected by DID
at the time of the rape and that Lauren's trial testimony was not affected
by DID. That ruling was based on Dr. Gregory's testimony that "memory gaps
and amnesia [are] one of the major diagnostic criteria of DID."(7)
As to the nature of the amnesia that is symptomatic of DID, Dr. Gregory
testified: "Let me say it's inability to recall important personal information
that's too extensive to be explained by ordinary forgetfulness. That is
a gap in memory." Therefore, if one did not have gaps in his or her memory,
one would not have DID: "[I]t would be something other than that." Dr.
Brady testified that although Lauren had experienced periods of amnesia
or loss of memory about early childhood events related to child sexual
abuse, Lauren had not experienced any amnesia or loss of memory related
to the rape. Dr. Brady affirmed that Lauren's memory of the rape was
intact and concrete as to the occurrence and the events surrounding the
rape and as to events subsequent thereto. The evidence concerning Lauren's
ability to perceive and to recall those events accurately was uncontradicted.
There was no evidence that Lauren confabulated any events concerning the
rape or that some "personality" other than Lauren had consented to sexual
intercourse with defendant.
¶37
In ruling on the new trial motion,
the trial judge stated that it was clear that "defendant was not provided
the view of Judy Brady that the victim had dissociative identity disorder
or multiple personality disorder." On the basis of the evidence adduced
at the hearing on the motion for a new trial, the trial court found that,
factually, there had been "no showing that she [Lauren] was affected by
these purported disorders at the time of the rape, nor has it been shown
that her testimony was affected by any such purported disorder." On
that basis, the trial court concluded that "there would [not] have been
any material difference in the outcome of the verdict in the trial" had
the DID evidence been disclosed, and thus no due process violation occurred.
The trial court also assumed that defendant did not have exhibits 1014
and 1015, written summaries of Lauren's personal journal entries relating
to Bakalov, but nevertheless held that they were not sufficient to persuade
the court that, had the defendant received those exhibits along with the
DID information, "there would have been any material difference in the
outcome of the verdict in the trial, and that the court's confidence in
the guilty verdict is not undermined."
¶38
Given the state of the record and
the position of the parties at the time of trial, it is clear that the
prosecutor should have disclosed to defendant prior to trial the existence
of Dr. Brady's opinion and the use of the 3 x 5 card. Although the prosecutor
indicated that he did not accept Dr. Brady's opinion, he nonetheless took
actions designed to deal with the DID symptoms had they appeared in Lauren
at trial. It is not for a prosecutor to substitute his or her judgment
for that of a defendant with respect to whether exculpatory evidence is
sufficiently material to warrant disclosure to a defendant when the question
is at all close. Where a judgment call must be made as to whether evidence
is sufficiently exculpatory to be Brady material, doubts should
be resolved in favor of disclosure.
¶39
Nevertheless, the evidentiary hearing
after the trial established that the evidence withheld was not in
fact probative
of Lauren's ability to perceive, recall, and relate accurately
the events of the rape. The trial court's findings of fact in this regard
are well supported by the evidence. For that reason, the undisclosed DID
evidence was not constitutionally material because there was not a "reasonable
probability" that the result of the proceeding would have been different
if the evidence had been disclosed. United States v. Bagley, 473 U.S. 667, 682 (1985). For the same reason, we hold that the trial court
did not err in denying the motion for a new trial.(8)
State v. James, 819 P.2d 781, 793 (Utah 1991).
B. Disclosure of Journal Entries
¶40
Defendant also asserts that the
prosecutor violated due process by failing to disclose excerpts from Lauren's
journal entries covering the days surrounding the alleged rape. He argues
that the journal evidence was exculpatory and constitutionally material
under Brady.
¶41
The State admits that the journal
evidence could have been used to impeach Lauren on some issues, but it
argues that the journals were in fact disclosed, and that in any event,
the journal entries were not constitutionally material. The prosecutor
testified that he remembered giving at least one of the excerpts to defendant
and believed that both must have been disclosed. Defendant claims never
to have received them. The trial court did not decide the issue. We hold
that the trial court did not err in denying the motion for a new trial
on this basis.
¶42
At the prosecutor's request and
in an effort to avoid having to disclose her entire journal, Lauren summarized
her journal entries relating to defendant in two separate documents, exhibits
1014 and 1015. Both summaries cover the same time period, although their
specificity differs. Among other things, the excerpts detail Lauren's romantic
interest in Bakalov and her demonstrations of that interest. They are inconsistent
with Lauren's trial testimony as to the date on which Bakalov first visited
Lauren's apartment. They also state that Lauren telephoned Bakalov the
day following her alleged rape to invite him to attend a church conference.
¶43
The trial judge found that this
information was contained in another exhibit that defendant utilized. Our
review of the record supports this finding. Exhibit 1021 contained notes
of Lauren's testimony at the preliminary hearing, discussing Lauren's initial
interest in Bakalov. Lauren made the same inconsistent statement about
dates in her preliminary hearing testimony that she made in her journal.
In addition, at trial Lauren admitted her attraction to Bakalov and described
the telephone call she made to Bakalov the day after her rape.
¶44
Furthermore, Bakalov knew that the
journals existed. "We are not inclined to accept [the defendant's] assessment
on appeal that the [journal excerpts] had great significance to the defense
when the defendant did not even request to see them once their existence
had been disclosed." State v. Schreuder, 712 P.2d 264, 276 (Utah
1985).
¶45
As stated, due process requires
a prosecutor to disclose all exculpatory evidence that is material to guilt
or punishment. See Brady v. Maryland, 373 U.S. 83, 87 (1963);
State v. Jarrell, 608 P.2d 218, 224 (Utah 1980). Evidence is material
when it is reasonably probable that disclosure would affect the outcome
of the criminal proceeding. See Kyles, 514 U.S. at 434. Given
the existence of the other evidence, it is not reasonably probable that
disclosure of the journal entries would have affected the outcome of the
trial and they were not, therefore, constitutionally material.
IV. THE COURT'S DENIAL OF DEFENDANT'S
MOTION
TO TEST THE CODE R SEMEN SAMPLES
¶46
Defendant next contends that the
trial court committed reversible error in refusing to permit him to test
the Code R semen sample, consisting of vaginal washings and specimens from
a vaginal smear, that was collected from the victim in her Code R, or rape,
examination. The Code R sample, when dyed and examined microscopically,
tested positive for rare intact sperm.(9)
However, the sample was not submitted to DNA or other blood type testing,
according to the State, because of the sample's small size and because
the dye used to enable a microscopic view of the sperm destroyed the lab's
ability to perform additional testing. Furthermore, the State did not have
an undisputed sample of defendant's blood that could be compared against
the Code R sample.
¶47
The vial and slide containing the
Code R sample were misplaced while in the court's custody and could not
be located when the parties met in July 1994 to review the exhibits in
preparation for the second trial. However, both the vial and the slide
were found inside of another exhibit the day before trial was to begin,
September 19, 1994, and standby counsel moved for a continuance so that
cross-testing of the Code R sample with defendant's blood could be performed.
The trial court denied the motion for continuance, but ruled that defendant
could test the Code R sample while trial proceeded provided that (1) defendant
submit a sample of his blood and (2) if testing excluded defendant the
State would dismiss all charges. Defendant, nonetheless, refused to provide
the comparison sample. Based on this refusal, the motion for testing was
denied.
¶48
Defendant argues that the trial
court's denial of the motion for testing violated due process because the
Code R sample, having potentially exculpatory import, should have been
tested and disclosed to defendant by the State under Brady v. Maryland,
373 U.S. 83 (1963), and because depriving defendant of an opportunity to
test the sample also deprived him of the basic tools he needed to adequately
present his case.
¶49
Defendant's Brady claim in
this regard is without merit. As discussed above, Brady prohibits
suppressing evidence favorable to the defense "where the evidence is material
either to guilt or to punishment." Id. at 87. Defendant urges that
we hold the untested semen sample in this case to be constitutionally material.
Both this Court and the United States Supreme Court have rejected that
view, however. In State v. Shaffer, 725 P.2d 1301 (Utah 1986), we
held that the "mere possibility" that undisclosed evidence might favor
a defendant cannot establish a Brady violation. Id. at 1305-06;
see also State v. Lovato, 702 P.2d 101, 106-07 (Utah 1985).
Likewise, the United States Supreme Court held in a case with similar facts
to this that "[t]he possibility that the semen samples could have exculpated
respondent if preserved or tested is not enough to satisfy the standard
of constitutional materiality." Arizona v. Youngblood, 488 U.S. 51, 56 n.* (1988). We cannot simply presume that blood type analyses of
the semen sample would yield results favorable to defendant. Rather, the
exculpatory value of untested or unavailable evidence "must be apparent"
before discovery is mandated by Brady. Id. (citing
California
v. Trombetta, 467 U.S. 479, 489 (1984)).
¶50
Further, while due process may demand
that the State reasonably maintain evidence potentially favorable to a
defendant, it does not require that the State "'search for exculpatory
evidence, conduct tests, or exhaustively pursue every angle on a case.'"
Shaffer, 725 P.2d at 1306 (quoting State v. Hall, 593 P.2d 554, 558 (Wash. Ct. App. 1979)). To make such a demand on the prosecution,
indeed, would be "to require the impossible." Id. Evidence such
as the Code R sample in this case is fragile, is subject to decay, and
may tolerate only limited analysis. Performing one sort of test important
to the prosecution may preclude conducting other tests. Also, evidence
becomes relevant in a particular case only after the legal theories in
the case have been identified. Due process does not extend to forcing the
prosecutor to divine a defendant's legal theories or to forego conducting
evidentiary analyses favorable to the State's case.
¶51
Defendant's second due process argument
is more credible. Generally, a defendant's right to a fair trial assures
the defendant access to the "'basic tools'" or "raw materials integral
to the building of an effective defense." Ake v. Oklahoma, 470 U.S. 68, 77 (1985) (quoting Britt v. North Carolina, 404 U.S. 226, 227
(1971)). In this case, defendant argues that he was deprived of those tools
when the trial court refused to permit his testing of the Code R semen
sample. We do not agree.
¶52
We acknowledge that fundamental
fairness may in some cases be violated "when a criminal defendant . . .
is denied the opportunity to have an expert of his choosing, bound by appropriate
safeguards imposed by the Court, examine a piece of critical evidence whose
nature is subject to varying expert opinion." Barnard v. Henderson,
514 F.2d 744, 746 (5th Cir. 1975); see also Annotation, Right
of Accused in State Courts to Have Expert Inspect, Examine, or Test Physical
Evidence in Possession of Prosecution--Modern Cases, 27 A.L.R. 4th
1188 § 4 (1984 & Supp. 1998). However, there is no such violation
when the evidence to be evaluated is not "critical." Gray v. Rowley,
604 F.2d 382, 383 (5th Cir. 1979); see also Barnard, 514 F.2d at 746. "'Critical evidence' is material evidence of substantial probative
force that 'could induce a reasonable doubt in the minds of enough jurors
to avoid a conviction.'" Gray, 604 F.2d at 383-84 (quoting White
v. Maggio, 556 F.2d 1352, 1357-58 (5th Cir. 1977)). In Gray,
the defendant, convicted of rape in state court, challenged his conviction
on habeas review because he was not permitted an independent examination
of seminal fluid found on the rape victim's clothing. The Fifth Circuit
held that the seminal fluid and expert testimony concerning it were not
"critical evidence" because the defendant had not provided the state with
his blood type and, without that information, the seminal fluid could not
be linked to him. Id. at 383. Identical facts exist in this case.
Bakalov's repeated refusal to provide a blood sample to the State has prevented
matching his blood with the semen contained in the Code R sample; without
information about his blood, there is no nexus to connect the semen sample
to Bakalov. As a result, the Code R sample is not critical to a determination
of Bakalov's guilt or innocence, and the trial court's refusal to permit
defendant to independently examine the semen sample was not error.
¶53
Our holding on this issue is reinforced
by the possibility that the Code R sample was, as the State contends, consumed
in the State's initial dye testing. Biological evidence, especially when
obtained in small quantities, is highly volatile, and limited chemical
testing can consume an entire sample, rendering it useless to further analysis.
The strictures of due process accommodate this reality, recognizing that
the "failure to preserve potentially useful evidence does not constitute
a denial of due process" unless the criminal defendant can show bad faith
on the part of the State. Youngblood, 488 U.S. at 58. Accordingly,
evidence consumed in testing because of its destructible nature, as here,
cannot be considered "evidence whose nature is subject to varying expert
opinion," which due process entitles a defendant to subject to testing.
Barnard, 514 F.2d at 746.
¶54
Finally, even were defendant entitled
to an opportunity to have his own expert evaluate the Code R sample under
Barnard, the condition for testing imposed by the trial court was
reasonable. Defendant had previously refused court orders requiring him
to provide blood samples to the State, and he specifically refused to provide
a sample for cross-matching with the Code R sample. It was defendant's
refusal to abide the court's precondition--i.e., that he submit a blood
sample--that resulted in the court's denial of his motion for testing.
Because the trial court's condition was geared to assuring the relevance
of the Code R testing, it comported with Utah Rule of Criminal Procedure
16(h)(6), requiring an accused to "permit the taking of samples of blood,"
and Rule 16(g), authorizing the court to sanction in any way "it deems
just" a defendant who fails to comply with a discovery order. Utah R. Crim.
P. 16(g), (h)(6). Rule 16 "grants a trial court ample discretion to remedy
any prejudice to a party resulting from a breach of the criminal discovery
rules." State v. Larson, 775 P.2d 415, 418 (Utah 1989) (citing State
v. Knight, 734 P.2d 913, 918 (Utah 1987)); see alsoBarnard,
514 F.2d at 746 (stating that the opportunities for testing critical evidence
may be limited by "appropriate safeguards imposed by the Court"); Wendy
Evans Lehmann, J.D., Annotation, Sanctions Against Defense in Criminal
Case for Failure to Comply with Discovery Requirements, 9 A.L.R. 4th
837 § 3 (1981). Defendant refused to provide the ordered blood sample
and in so doing declined his due process opportunity to have an independent
expert evaluate the Code R sample. As stated by the California Supreme
Court, "Forcing such a choice does not violate the constitution or any
other provision of law." People v. Cooper, 809 P.2d 865, 889 (Cal.
1991).
V. THE PROSECUTOR'S ALLEGEDLY IMPROPER CLOSING STATEMENTS
¶55
We now turn to Bakalov's assertion
that the prosecutor made improper comments in his closing arguments to
the jury. Bakalov identifies numerous comments that he claims were improper.
Specifically, he avers that the prosecutor vouched for the complaining
witness, suggested that the State required the jury to convict defendant,
argued outside of the scope of the evidence, gave the jury a false impression
of the evidence, and asked jurors to imagine themselves as defendant's
victims.
¶56
To prevail in this claim, defendant
must show that the remarks "called to the jurors' attention matters which
they would not be justified in considering in reaching a verdict" and,
if so, that the remarks were harmful. State v. Creviston, 646 P.2d 750, 754 (Utah 1982). Furthermore, because defendant did not object to
the statements during trial, he also must demonstrate plain error, meaning
that error was obvious and substantially prejudicial. See State
v. Dunn, 850 P.2d 1201, 1224 (Utah 1993). In assessing whether there
was prejudicial error in the prosecutor's comments, we will consider the
comments both in context of the arguments advanced by both sides as well
as in context of all the evidence. We have repeatedly observed "that counsel
for each side has considerable latitude [in closing arguments] and may
discuss fully his or her viewpoint of the evidence and the deductions arising
therefrom." Id. at 1223.
¶57
Throughout his closing arguments,
the prosecutor several times commented to the jury, "You know that [Lauren]
told the truth" or "She told the truth." Defendant characterizes these
statements as testimonials to Lauren's credibility. We disagree. It is
true that a prosecutor engages in misconduct when he or she expresses personal
opinion or asserts personal knowledge of the facts. See State
v. Parsons, 781 P.2d 1275, 1284 (Utah 1989). However, a prosecutor
may draw permissible deductions from the evidence and make assertions about
what the jury may reasonably conclude from those deductions. See
id. Here, the prosecutor's comments about Lauren's credibility were
not statements of personal belief but, rather, assertions about what the
jury should infer from the evidence during their deliberations.(10)
Moreover, the prosecutor's statements responded to Bakalov's repeated assertions
that Lauren had deliberately fabricated her rape claim. As we stated in
State v. Lafferty, "[W]e think it very unlikely that a juror would
consider these statements to be factual testimony from the prosecutor."
749 P.2d 1239, 1256 (Utah 1988).
¶58
Defendant also complains that the
prosecutor invoked the prestige of the State to obligate the jury to find
defendant guilty. The prosecutor began his closing argument by informing
the jurors, incorrectly, that they were now part of the State and then
later added: "The State of Utah asks you to do your duty and find [Bakalov]
guilty." It is error for a prosecutor to bolster his or her case by implying
"that a jury has an obligation to convict a defendant on some basis other
than solely on the evidence before it." State v. Andreason, 718 P.2d 400, 402 (Utah 1986); see State v. Hopkins, 782 P.2d 475, 479-80 (Utah 1989) (quoting United States v. Young, 470 U.S. 1, 18-19 (1985)). The prosecutor's comments in this case, however, must
be viewed in context of the surrounding arguments. See Hopkins,
782 P.2d at 480. The record reveals that the prosecutor's introductory
statement that jurors belonged to the government was paraphrased from a
popular humorist, whom the prosecutor identified to the jury, and was intended
to underscore the importance of the jury's impartial fact-finding role.
The second remark, furthermore, was sandwiched between an invitation to
the jury to acquit Bakalov "if you believe any part of [his] story" and
a strong caution to convict only if Bakalov "is guilty according to
the evidence" (emphasis added). Given the contextual settings of these
comments, we find that any error in the statements was harmless. The prosecutor
likely did not sway the jury to consider factors other than evidence presented
at trial.
¶59
Defendant also asserts that the
prosecutor argued outside of the evidence by stating that Lauren's testimony
was consistent at all proceedings, by referring to Lauren's clothing, and
by citing the emotional cost Lauren incurred in reporting the rape. Again,
we find no merit in defendant's contentions. While encouraging jurors to
consider matters outside the evidence is prosecutorial misconduct, see
State v. Troy, 688 P.2d 483, 486 (Utah 1984), the prosecutor may
fully discuss with the jury reasonable inferences and deductions drawn
from the evidence, seeParsons, 781 P.2d at 1284. We conclude that
each of the statements Bakalov complains of were reasonable inferences
from admitted evidence. First, Bakalov contends that the prosecutor falsely
claimed that Lauren's testimony was consistent throughout all of the proceedings.
The record does not support this contention. Indeed, the prosecutor acknowledged
minor inconsistencies in Lauren's testimony and simply argued that defendant
had not produced any evidence that Lauren had materially changed her testimony
despite defendant's allegations to the contrary.(11)
Next, the prosecutor's reference to Lauren's clothing was not, in context,
to what she wore at trial but to what she wore the night of the rape. Lauren's
skirt, which bore a semen stain, and her religious garments, worn as a
symbol of her religious commitment, had been admitted as exhibits; they
supported the prosecutor's view of how the rape transpired and his inference
that Lauren may not have wanted sex. Finally, the prosecutor's comment
that the rape cost Lauren "a high price" fairly summarized Lauren's trial
testimony about her reluctance to report the rape and the emotional trauma
she suffered. In light of this testimony, it was reasonable for the prosecutor
to invite the jury to consider this "price" in assessing Lauren's credibility.
¶60
Defendant next argues that the prosecutor
presented a false impression of the evidence when he stated that Bakalov
could have tested the Code R sperm sample under a microscope. This statement,
defendant asserts, is unsupported by admitted evidence and gives the misleading
impression that defendant had to produce evidence to prevail.(12)
Indeed, testing of the semen sample taken in Lauren's Code R examination
was not admitted to evidence during trial. The context of the statement
and established law makes the prosecutor's remark permissible in this case,
however. See Dunn, 850 P.2d at 1225; Hopkins, 782 P.2d at 480. The remark was prompted by Bakalov's claim in his closing
argument that the State had deliberately refused to perform DNA testing
which, Bakalov alleged, could have exonerated him. The prosecutor thus
explained to the jury that DNA analysis was not possible given the physical
condition of the sample and that had Bakalov wanted, he could have tested
the sample for himself. We recognize that, notwithstanding Bakalov's attacks,
the prosecutor ideally should not have argued outside of the evidence;
such a foray into facts not adduced at trial was unnecessary to answer
defendant's assertions. See Troy, 688 P.2d at 486. Nevertheless,
we find that the jury's understanding that the prosecutor spoke to counter
both the argument that testing was maliciously withheld and defendant's
repeated attacks on the prosecutor's integrity mitigated any potential
harm from this remark. Indeed, Bakalov's accusations invited the prosecutor's
extra-evidentiary reply. See United States v. Young, 470 U.S. 1, 18-19 (1985).
¶61
Lastly, the prosecutor argued that
jurors had observed defendant in the courtroom and that they saw he "could
not take no for an answer." He then asked the jurors to consider how they
would have responded to Bakalov's aggressions in assessing Lauren's testimony
about her own reactions. Bakalov characterizes this invitation as inciting
the jurors' passions by asking them to imagine themselves as his victims.
We disagree. The prosecutor did not attempt to emotionally rouse the jurors
but asked them, as reasonable people, to consider the situation Lauren
faced. Given the broad latitude accorded counsel in arguing his or her
theory to the jury, we have held almost identical remarks by prosecutors
to be proper. See, e.g., State v. Williams, 656 P.2d 450,
453-54 (Utah 1982) (approving the comment: "Ask yourselves what you would
have done under that set of circumstances."). We find no error in the prosecutor's
invitation.
¶62
In short, Bakalov has failed to
establish prejudicial error with regard to any of the above-referenced
statements by the prosecutor.
VI. TESTIMONY FROM DEFENDANT'S FORMER
COUNSEL AND
THE INVESTIGATIVE OFFICER
¶63
Bakalov's fifth claim of error is
that the trial court improperly permitted the State to (1) call as a witness
defendant's former attorney Edward K. Brass and (2) elicit from the investigating
detective testimony regarding defendant's initial exercise of his rights
to counsel and silence.
¶64
We review for abuse of discretion
a trial court's decision to allow an attorney to testify. See Williams,
656 P.2d at 453. Certainly, judges should exercise great caution in permitting
one side to call as a witness an opponent's trial attorney or the prosecutor,
since calling counsel who is actively participating in the case could force
removal of counsel from the case and "would be incalculably disruptive
to the judicial system and oppressive to the opposing side." State v.
Worthen, 765 P.2d 839, 849 (Utah 1988). In this case, however, Brass
was not defendant's trial counsel. Brass represented Bakalov only briefly
nearly three years before trial, and their association stemmed more from
their having exercised at the same gym than from this abbreviated professional
relationship. Indeed, the State called Brass to testify to his observations
of Bakalov's weight lifting abilities. The prosecutor did not allow Brass
to identify himself as an attorney, much less as Bakalov's former attorney,
and questioned him only concerning these non-professional observations.
Furthermore, the prosecutor properly notified Bakalov before trial that
he intended to call Brass; Bakalov did not object then or at trial. Nothing
in the record supports defendant's claim that the trial court abused its
discretion in permitting Brass to testify.
¶65
Nor was there error in the court's
allowing the prosecutor to question Detective Allen about defendant's post-arrest
silence. Standby counsel moved for mistrial on the basis of this questioning,
which motion the trial court denied. The prosecution may not in general
refer to or elicit testimony regarding an accused's exercise of the rights
to counsel and silence after arrest. See Doyle v. Ohio, 426 U.S. 610, 617-20 (1976); State v. Wiswell, 639 P.2d 146, 147 (Utah
1981). Nonetheless, we have clearly held that a defendant "forfeit[s] his
right to prevent the prosecutor from commenting on his request for counsel
[when] he adduce[s] and relie[s] on the evidence as part of his . . . defense."
State v. Dunn, 850 P.2d 1201, 1223 (Utah 1993); see also
State v. Sorrels, 642 P.2d 373, 375 (Utah 1982) (per curiam). The
same principle applies to a defendant's post-arrest silence.
¶66
Here, while the prosecutor had called
Brass to testify about matters unrelated to his representation of Bakalov,
Bakalov elicited privileged information from him, causing the court to
warn Bakalov of the dangers. Despite this warning, Bakalov proceeded to
extensively question Brass concerning their conversations and Brass's conversations
with the detective. Bakalov specifically asked Brass if he told the detective
not to interview defendant and asked him to explain why; Brass replied
that no attorney should allow a client to speak freely with the police.
Bakalov used this testimony in his defense to give an explanation, in addition
to a guilty conscience, for fleeing the police when they came to arrest
him. Thus, defendant cannot complain about the prosecutor's examination
of Detective Allen on essentially the same information.
¶67
In any event, we hold that the detective's
testimony is not a comment on defendant's exercise of his rights to counsel
and silence. Doyle prohibits the prosecutor's use of defendant's
silence to demonstrate guilt. However, we have held that, when an officer
testifies to the circumstances surrounding an arrest, a part of which is
defendant's silence, without further reference to or comment on the matter
either in testimony or argument to the jury, there is no violation of that
principle. See State v. Urias, 609 P.2d 1326, 1328 (Utah
1980); see also State v. Singleton, 693 P.2d 68, 69-70 (Utah
1984). Detective Allen testified that Bakalov wanted to speak to him but
that he could not understand Bakalov and so promised a re-interview which
did not occur because Brass advised against it. Neither the detective in
his testimony, nor the prosecutor in his closing arguments, made any further
mention of Bakalov's silence. The jury would not likely have construed
this testimony as commenting on defendant's silence. Given the above, the
trial court did not abuse its discretion in denying standby counsel's motion
for mistrial.
VII. DEFENDANT'S REMAINING CLAIMS
REGARDING
SPECIFIC WITNESSES
¶68
Bakalov asserts several other claims
of error that we have reviewed and found to be meritless. Specifically,
he contends that he was deprived of due process and a fair trial because
his requested witnesses were not subpoenaed and did not testify. Because
he was pro se and imprisoned, defendant had limited ability to locate and
contact witnesses.(13) Our review of the
record demonstrates, however, that the court, in recognition of this fact,
extended Bakalov courtesies not mandated by the rules, repeatedly reminded
him of the need to secure defense witnesses, patiently reviewed with him
his list of proposed witnesses to determine who could be relevant, and
then allowed him to subpoena all those deemed relevant. Despite this effort,
defendant was consistently unprepared. Moreover, he declined the resources
available to him. He refused to cooperate with standby counsel who could
have advised him procedurally or utilized the services of LDA investigators
and the sheriff's office to locate witnesses. He rejected the benefits
of a full defense investigation conducted by LDA investigators for the
first trial, labeling the investigation as a "sham." He also failed to
profitably use the additional telephone privileges given him while in jail.
Hence, there is no factual basis for arguing that the court precluded defendant
from securing material witnesses. Trial judges are not required to "redress
the ongoing consequences of [a pro se] party's decision to function in
a capacity for which he is not trained." Nelson v. Jacobsen, 669 P.2d 1207, 1213 (Utah 1983).
¶69
Bakalov also asserts that the court
did not allow him to present evidence regarding his theory of the case
and inappropriately curtailed his cross-examination of a State's witness.
In support of his defense that he and Lauren did not have intercourse the
night of the rape, Bakalov asked to call witnesses to establish that intact
spermatozoa would not have existed 72 hours after intercourse, the time
period after which Lauren reported the alleged rape. The trial court denied
this request for witnesses, and we affirm that denial. Defendant was granted
permission to present slides and various scientific articles already in
his possession demonstrating the identical information. Additionally, defendant
was permitted to testify to his own extensive medical qualifications and
state any knowledge he had. Appointment of a state-paid scientific expert
is not mandated when alternative methods for establishing a defendant's
claims are adequate. See Britt v. North Carolina, 404 U.S. 226, 227-28 (1971) (permitting alternatives to transcript); Jackson
v. Ylst, 921 F.2d 882, 886 (9th Cir. 1990).(14)
¶70
Finally, we uphold the court's use
of its prerogative to control the courtroom in curtailing defendant's irrelevant
and self-prejudicial questioning of witness Deanna Ludlow, Lauren's roommate
at the time of the rape. The State called Ms. Ludlow, who lived out-of-state,
out of order because of delays in the trial and because she had to catch
an airplane. On direct examination, Ludlow testified about how she met
Bakalov, when she introduced him to Lauren, her knowledge of Lauren's typing
for Bakalov, how Lauren appeared when she returned with Bakalov after the
rape, and Lauren's subsequent revelation to her that she had been raped.
Bakalov cross-examined Ludlow on all these areas and on many unrelated
areas, including Lauren's apartment decorations, whether Lauren had intercourse
with a boyfriend, and whether Ludlow had been told that Bakalov was a KGB
spy. At this point, the trial court invoked Utah Rule of Evidence 611 to
end what it viewed as a prolonged and irrelevant examination.
¶71
Our review of the record supports
this view. Defendant's examination had become irrelevant, confusing for
the jury, time-wasting, and self-prejudicial. While a pro se defendant
should be given reasonable leeway, the defendant's examination of a witness
must nonetheless be relevant and material to the issues. When it is not,
a trial court has the power to curtail that examination as part of its
Rule 611 power to control the courtroom. The court in this case had repeatedly
warned defendant prior to and throughout trial that it would invoke Rule
611 to prevent harassing or irrelevant questioning of witnesses. Indeed,
the court invoked the rule several other times at trial. Defendant had
ample time to examine Ludlow and had questioned her on all areas broached
in direct examination. In fact, Bakalov admitted he had wasted time in
examining Ludlow. Finally, the court, in curtailing questioning, took pains
to permit defendant to bring forth additional facts or show any inconsistencies
by using Ludlow's testimony from the first trial. The trial court did not
err in this regard.
VIII. DEFENDANT'S SENTENCE FOLLOWING THE SECOND TRIAL
¶72
Defendant's final contention is
that the trial court erred in sentencing him more severely after his first
conviction was reversed on appeal. It is on this point that Bakalov succeeds
in part. Following the second trial, Judge Murphy sentenced Bakalov to
prison, ordered him to pay restitution for costs incurred in Lauren's counseling
and in testing the Code R semen sample, imposed a $10,000 fine, and recommended
to the Board of Pardons that he never be paroled unless he is deported
under circumstances whereby he cannot reenter the United States. Bakalov
argues that the fine and the Board of Pardons recommendation impermissibly
augmented his sentence from that imposed after his first conviction.
¶73
As we have recognized, the Fifth
Amendment of the United States Constitution, applied to state action through
the Fourteenth Amendment, mandates that a sentence after reversal of a
criminal conviction cannot be more severe than the original sentence, "unless
the reason for the increased sentence, based on identifiable conduct by
the defendant following the original trial, appears in the record." State
v. Sorensen, 639 P.2d 179, 180 (Utah 1981). This rule works "to assure
that there is no chilling or deterring of the criminal defendant's exercise
of his basic constitutional right to appeal." Id. at 181. In addition,
Utah Code Ann. § 76-3-405 (1995) provides:
Where a conviction or sentence
has been set aside on direct review or on collateral attack, the court
shall not impose a new sentence for the same offense or for a different
offense based on the same conduct which is more severe than the prior sentence
less the portion of the prior sentence previously satisfied.
This statute, more stringent than the
due process protection, "allows for no exceptions." Sorensen, 639 P.2d at 180. The meaning of a "more severe" sentence is clear. "The second
sentence cannot exceed the first in appearance or effect, in the number
of its elements, or in their magnitude." Id. at 181 (citation omitted).
¶74
The fine the trial court imposed
after the second trial undisputably violates these prohibitions. The State
admits as much, acknowledging that the original sentence did not impose
a fine. We therefore remand the case for resentencing, instructing the
court to eliminate the fine.
¶75
The trial court's recommendation
to the Board of Pardons, however, is permissible. Under the indeterminate
sentencing scheme adopted by this State, "'the trial judge has no discretion
in fixing the term of imprisonment.'" Labrum v. Board of Pardons,
870 P.2d 902, 907 (Utah 1993) (quoting State v. Egbert, 748 P.2d 558, 563 (Utah 1987) (Zimmerman, J., dissenting)). Instead, "If the trial
judge sends [a] defendant to prison, the judge does not determine the number
of years the defendant will spend there. That is left to the unfettered
discretion of the board of pardons . . . ." Foote v. Board of Pardons,
808 P.2d 734, 735 (Utah 1991). The trial judge's recommendation to the
board is simply the judge's personal non-binding expression of what length
of actual incarceration may be appropriate. It does not increase to any
degree the effect or magnitude of a sentence, and accordingly, the recommendation
is not prohibited.
IX. CONCLUSION
¶76
For the foregoing reasons, we affirm
defendant's conviction of rape and affirm the trial court's denial of a
new trial. We remand the case for resentencing consistent with this opinion.
---
¶77
Chief Justice Howe, Associate Chief
Justice Durham, Justice Zimmerman, and Justice Russon concur in Justice
Stewart's opinion.
1. Defendant Bakalov requested that Joan C. Watt and Vernice S. Ah Ching be removed as his stand-by counsel. The Court requested that they present arguments for Bakalov's position by submitting formal briefs. On January 23, 1998, after submission of the case to the Court for decision, Edward R. Montgomery filed an appearance as counsel for defendant. On May 5, 1998, the Court entered an order allowing Joan C. Watt and Vernice Ah Ching of the Salt Lake Legal Defender's Association to withdraw as stand-by counsel and allowing Edward R. Montgomery to appear as stand-by counsel for defendant.
2. A witness suffering from multiple personality disorder has two or more competing personalities, each with unique memories, behavior patterns, and social relationships. See American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders § 300.14, at 269 (3d ed. rev. 1987). Only one personality presents itself externally at a time, although other personalities may "listen in" on external events. See id. at 270. Thus, the witness's recollection of personal history, both remote and recent, may be incomplete or distorted depending on which personality dominates a given moment. See id. Moreover, transition between personalities is often triggered by psychological stress, and the disease tends to be chronic rather than episodic. See id. at 269-70, 271.
A fourth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) issued in 1994 after the victim was diagnosed with multiple personality disorder. This new edition redesignated the disease as dissociative identity disorder and updated the diagnostic standard for the disease. See id. § 300.14. Although it differs from the nomenclature used in the trial court below, we will refer to the disorder as DID.
3. The right to self-representation in criminal proceedings is also guaranteed by the Utah Constitution as well as by state statute. See Utah Const. art. I, § 12; Utah Code Ann. § 77-1-6(1)(a) (1995).
4. As we stated in Wulffenstein, "We refuse to indulge in defendant's suggestions that representation by the public defender's office is an ipso facto denial of his constitutional right to effective assistance of counsel." 733 P.2d at 121.
5. The choice, furthermore, was not novel. In Wulffenstein, we endorsed the lower court's instruction to the defendant who, like Bakalov, insisted that private counsel be appointed to represent him, that the defendant's unjustified rejection of court-appointed counsel would be deemed a waiver of the right to counsel. Id. at 121 (citing United States v. Moore, 706 F.2d 538, 540 (5th Cir. 1983) (holding that defendant is not entitled to demand that his appointed counsel be relieved and that new counsel "who will docilely do as he is told" be appointed: "[A] persistent, unreasonable demand for dismissal of counsel and appointment of new counsel . . . is the functional equivalent of a knowing and voluntary waiver of counsel.")).
6.Bakalov also received psychological testing and was found competent to knowingly and intelligently waive the right to assistance of counsel. Bakalov does not seriously contest his competency on appeal.
7.She relied on DSM-IV, which states: The essential feature of Dissociative Identity Disorder is the presence of two or more distinct identities or personality states (Criterion A) that recurrently take control of behavior (Criterion B). There is an inability to recall important personal information, the extent of which is too great to be explained by ordinary forgetfulness (Criterion C). The disturbance is not due to the direct physiological effects of a substance or a general medical condition (Criterion D). In children, the symptoms cannot be attributed to imaginary playmates or other fantasy play. DSM-IV, supra note 1, § 300.14, at 484 (emphasis added).
8. The trial court also found, as an alternative ground for its holding that the assumed nondisclosure did not violate Brady, that defendant could not have effectively utilized the information had it been disclosed. Defendant's skill in presenting a defense is irrelevant in analyzing Brady. Due process entitles the defendant to all constitutionally-material, exculpatory evidence, regardless of the defendant's adeptness at employing the evidence at trial.
9. The victim did not report the alleged rape until nearly three days after the incident. Intact spermatozoa are rarely found between 24 and 72 hours after intercourse and almost never found after 72 hours.
10. The trial court considered the propriety of these comments in ruling on defendant's motion for new trial: I have looked at those comments, and they appear to me to be appropriate in the context of the closing argument. The prosecutor was not vouching for the witness. In fact, the thrust of it was that the evidence was so compelling that the reference was to "you", from the transcript, meaning the jury, "you can determine this. You can see this." I see no impropriety whatsoever. The trial court's conclusion, supported by both the written transcripts and the court's own impressions of the closing arguments underscores our own.
11. In any event, defendant responded to the prosecutor's argument in his subsequent closing argument. We have held that such a response may ameliorate the harm of improper comments by the prosecutor. See Dunn, 850 P.2d at 1225.
12. Bakalov also claims that the statement was false. To the contrary, the prosecutor's assertion that Bakalov could have tested the sample was true. At Bakalov's urging, the trial court had ruled that Bakalov could test the semen sample if he would submit a sample of his blood. Bakalov refused to comply and thereby forfeited his opportunity to test the sample. See supra ¶¶ 46-54.
13.This limited ability is a natural and foreseeable consequence of his choice of self-representation--a choice, moreover, that the trial court clearly explained to Bakalov in their Frampton colloquy.
14. Furthermore, defendant testified that the experts he contacted had refused to testify for him.
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