State v. Bakalov
| Decision Date | 11 May 1999 |
| Docket Number | No. 940523,940523 |
| Citation | 979 P.2d 799 |
| Parties | 369 Utah Adv. Rep. 3, 1999 UT 45 STATE of Utah, Plaintiff and Appellee, v. Bojidar Georgiev BAKALOV, Defendant and Appellant. |
| Court | Utah Supreme Court |
Jan Graham, Att'y Gen., Christine Soltis, Asst. Att'y Gen., James M. Cope, Salt Lake City, for plaintiff.
Bojidar Georgiev Bakalov, pro se. *
¶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) (). 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.
¶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), 1 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...
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