95-749 La.App. 3 Cir. 4/17/96, State v. Bolden

• Citation: 680 So.2d 6
• Parties: 95-749 La.App. 3 Cir
• Decision Date: 17 April 1996
• Court: Court of Appeal of Louisiana (US)

Page 6

680 So.2d 6

95-749 La.App. 3 Cir. 4/17/96

STATE of Louisiana v. Ivrin BOLDEN, Jr.

No. Cr95-749.

Court of Appeal of Louisiana Third Circuit.

April 17, 1996.

Writ Denied Nov. 22, 1996.

Jerry L. Jones, Monroe, Charles C. Cook, West Monroe, J. Michael Ruddick, Asst. Dist. Atty., Monroe, for State.

Ansel Martin Stroud, III, Shreveport, for Ivrin Bolden Jr.

Before THIBODEAUX, SAUNDERS and SULLIVAN, JJ.

[95-749 La.App. 3 Cir. 1] SULLIVAN, Judge.

This perjury case stems from a murder committed in Monroe, Louisiana on March 5, 1987. Defendant, Ivrin Bolden, Jr., was tried for that murder and acquitted in 1988. During his murder trial, Bolden testified that he neither killed nor had any physical contact with the victim, Brenda Spicer, on the date of her death.

In 1992, the defendant was extradited from Tennessee to the Fourth Judicial District Court in Ouachita Parish. On September 3, 1992, he was charged by bill of information with perjury, a violation of La.R.S. 14:123, in connection with his testimony at the murder trial. The defendant filed pretrial motions, including one for a change of venue, one to suppress his prior statements to New Jersey and Memphis, Tennessee police officials, and another to quash the charge. A hearing was held on these motions on December 14, 1992. On April 26, 1993, the change of venue was granted. The defendant's other motions were denied; the motion to suppress was deferred.

[95-749 La.App. 3 Cir. 2] The defendant took supervisory writs on the motion to quash. Both the Second Circuit Court of Appeal and the Louisiana Supreme Court denied his writ applications. State v. Bolden, 93-1933 (La. 7/5/94); 639 So.2d 721. His writ of certiorari to the United States Supreme Court was also denied. Bolden v. Louisiana, 513 U.S. 1077, 115 S.Ct. 724, 130 L.Ed.2d 629 (1995).

Pursuant to the motion for change of venue, the matter was transferred to the Ninth Judicial District (Rapides Parish) and assigned docket number 238,403. The Fourth District Judge, Michael S. Ingram, was appointed as a judge ad hoc to the Ninth Judicial District by the Louisiana Supreme Court for the specific purpose of hearing this case.

The motion to suppress was deferred until shortly before trial. On December 30, 1994, the defendant filed a motion for closure of the suppression hearing. The district court heard and denied the closure motion on January 6, 1995. This court and the Louisiana Supreme Court subsequently denied writs.

The defendant filed supplemental motions for closure of the suppression hearing, individual voir dire, suppression of the defendant's statement, and a motion for continuance of the trial; each was denied. Jury selection began on January 17, 1995 and was completed the next day. The trial court then held the motion to suppress hearing. After taking the matter under advisement overnight, the court denied the motion on January 19, 1995. Trial commenced immediately thereafter, and the jury returned a guilty verdict.

A presentence investigation was ordered. The defendant filed motions for new trial and for a post-judgment verdict of acquittal. A hearing on both motions was held prior to the March 10, 1995 sentencing and both were denied. The court then [95-749 La.App. 3 Cir. 3] sentenced the defendant to ten years at hard labor, consecutive to any other sentence. ¹ The defendant's motion to reconsider sentence and his request for credit for time served were both denied.

He then filed a motion for appeal and to proceed in forma pauperis. These motions were granted. The defendant now appeals his conviction and sentence.

FACTS

The case sub judice stems from a notorious murder in Monroe, Louisiana. The body of Brenda Spicer, a former basketball player at Northeast Louisiana University (NLU), was found in a campus trash dumpster on the morning of March 6, 1987. The coroner determined the victim had been strangled to death at about 7:00 p.m. the previous evening. There was sperm in the victim's rectum and vagina, and saliva on her breasts, but no signs of sexual trauma.

The defendant was tried by jury, and he testified on his own behalf. Bolden specifically denied killing Spicer or having any physical contact with her. The jury returned a verdict of not guilty. For a thorough review of the testimony and facts of the murder trial, see State v. Bolden, 93-1933, 5-8, (La. 7/5/94); 639 So.2d 721, 724-725 (La.1994).

After the trial, the defendant moved to Tennessee with his girlfriend, Joel Tillis, who had also been a friend and former roommate of Spicer's. In May 1989, Ms. Tillis disappeared, and her body was discovered a month later in Arkansas. Authorities did not charge the defendant with Tillis's murder. He left Tennessee and eventually moved to New Jersey, where he began to live with Jennifer Spurlock. In February 1991, Bolden apparently decided to end the relationship. On March 12, [95-749 La.App. 3 Cir. 4] 1991, Ms. Spurlock, who had moved to her mother's home, entered Bolden's apartment without his authorization. Bolden filed a complaint with the local police department, and Spurlock was arrested the next day on burglary charges. On March 14, 1991, the defendant obtained a temporary restraining order against Spurlock. On March 20, 1991, this became a final order prohibiting her from contacting him.

During the police investigation of this episode, Spurlock told New Jersey police that the defendant had stated to her that he murdered both Spicer and Tillis. On March 26, 1991, at the direction of New Jersey officials, she made a recorded telephone call from the police station to Bolden at his work, trying to raise the matter of the murdered women.

On April 23, 1991, the defendant went to the Burlington County, New Jersey prosecutor's office to discuss the Spurlock phone call. After talking for a while, he acceded to investigators' request that he take a polygraph. He signed an examination waiver and a rights form. After investigators told him the test results indicated he was lying, Bolden gave a recorded statement in which he confessed to having killed both Tillis and Spicer.

The defendant was extradited to Tennessee, where he was indicted for the first-degree murder of Tillis. Pursuant to a plea agreement, he entered an Alford plea to involuntary manslaughter and in February 1992 he received the agreed upon sentence of ten years. The State of Louisiana then took action, extraditing the defendant from Tennessee to stand trial on the instant charge of perjury. See Bolden, 93-1933 at 2-4; 639 So.2d at 722.

At the perjury trial, the jury was allowed to listen to a tape of Bolden's April 23, 1991 statement given to officials at the Burlington County, New Jersey [95-749 La.App. 3 Cir. 5] prosecutor's office. Captain Robert Scara of that office testified that he met Bolden on that date at approximately 12:25 p.m. Scara handed Bolden a form upon which his Miranda rights were printed. Bolden read the form and then signed it. Captain Scara and Sergeant Fitzpatrick of the prosecutor's office then signed the form. Captain Scara identified state exhibit number one, the rights form signed by Bolden. According to Captain Scara, Bolden had no questions concerning his constitutional rights and said that he understood the contents of the form. After 1:35 p.m., Captain Scara had no further contact with Bolden.

Captain Michael King of the Burlington County, New Jersey Prosecutor's Office testified that he began speaking to Bolden soon after his arrival at the office at approximately 10:30 a.m. on April 23, 1991. At about 12:30 p.m., Bolden was taken to Captain Scara's office where he was given the rights form. At the time, Captain King and Sergeant Tim Cook of the Memphis Police Department were in an adjoining room behind a two-way mirror. They witnessed Bolden sign the rights form and were able to hear his discussion with Captain Scara through a speaker. After Captain Scara advised Bolden of his rights at approximately 12:30 p.m., Bolden was not Mirandized again that day. Captain King took Bolden's recorded statement which began at 3:33 p.m. He conceded that Bolden was not, at any point immediately before or during the statement, advised of his constitutional rights.

Sergeant Cook testified that he witnessed defendant's discussions with Captain Scara from behind the two-way mirror. He stated that Captain Scara advised Bolden of his right to remain silent, that anything said could be used against him in court, and of his right to counsel. Captain Scara then asked Bolden to read the rights form. Sergeant Cook also stated that he was present when Bolden's taped statement was made. He said that Bolden was not threatened, coerced or promised anything in [95-749 La.App. 3 Cir. 6] exchange for the statement. According to Sergeant Cook, Bolden did not decline to answer any questions.

A review of Bolden's taped statement reveals that he admitted that, on March 5, 1987, he strangled Spicer at a mini-storage warehouse in Monroe. He then drove her body to the NLU campus and placed it in the trash dumpster.

The state presented the testimony of three witnesses in an effort to corroborate the truthfulness of Bolden's statement given to New Jersey officials. Dr. George McCormick, a forensic pathologist and the Caddo Parish Coroner, testified that he performed the autopsy on Spicer's body. He determined the cause of her death to be manual strangulation. During the course of the autopsy, Dr. McCormick took photographs of Spicer's neck region. In conjunction with his testimony, he identified state's exhibits 10, 12 and 13 as the photographs taken during the autopsy. He explained that the photographs demonstrate physical contact and the aftereffects of strangulation by hand. On cross examination, Dr. McCormick stated that he had testified at Bolden's 1988 murder trial at which he gave the same opinion as to the cause of Spicer's death. Since that trial, he had done no further investigations or examinations in ...