State v. Bakalov, 910649-CA

CourtCourt of Appeals of Utah
Citation849 P.2d 629
Docket NumberNo. 910649-CA,910649-CA
PartiesSTATE of Utah, Plaintiff and Appellee, v. Bojidar G. BAKALOV, Defendant and Appellant.
Decision Date17 March 1993

Ronald S. Fujino (argued), Andrew A. Valdez, and Carlos A. Esqueda, Salt Lake City, for defendant and appellant.

Jan Graham, State Atty. Gen., Judith S.H. Atherton, Joanne C. Slotnik, Asst. Atty. Gen. (argued), Salt Lake City, for plaintiff and appellee.




Appellant, Dr. Bojidar Bakalov, appeals from his conviction of rape, a first degree felony, in violation of Utah Code Annotated section 76-5-402 (Supp.1991). Dr. Bakalov contends that the trial court violated his Constitutional right to self-representation. We remand for further proceedings.


Dr. Bakalov was born in Varna, Bulgaria. He obtained both an M.D. and a Ph.D. and taught and practiced medicine in Bulgaria and the Soviet Union. In 1989, the American Association of Thoracic Surgery awarded Dr. Bakalov the 1990-91 "Evarts A. Graham Memorial Traveling Fellowship," which allowed him to study in the United States and to increase his contacts with North American thoracic surgeons. Award candidates were required to be "sufficiently proficient in English to realize the full benefits of the Fellowship."

Dr. Bakalov arrived in Salt Lake City in the summer of 1990 under the sponsorship of Dr. William Gay, his contact at the University of Utah Medical Center. He met the alleged victim on April 1, 1991, after he had explained to one of her friends that he needed a typist. The two met several times over the next five days to work on Dr. Bakalov's resume. On the night of April 6, 1991, the two went for a drive in Dr. Bakalov's truck. What occurred thereafter is disputed. Dr. Bakalov claimed that they engaged in consensual sexual activity; the woman claimed that Dr. Bakalov forcibly raped her.

At his arraignment on May 17, 1991, Dr. Bakalov informed Judge Richard H. Moffat that he wished to represent himself because he did not want his "fate" affected by representation by someone other than himself. Judge Moffat denied Dr. Bakalov's request to represent himself and, over Dr. Bakalov's objections, ordered attorneys from the Salt Lake Legal Defenders Association to defend him. Judge Moffat stated:

Well, the point here is, you do not know the American legal system. You don't know and are not familiar with the procedures. You don't know the laws of the State of Utah; and you're not skilled as a lawyer.... You would be doing yourself a major disservice. You would not be able to adequately represent yourself ... I just can't, in all good conscience, Dr. [,] allow you to represent yourself in this case.

In a letter to Judge Moffat dated the next day, Dr. Bakalov again requested self-representation. He expressly requested Judge Moffat to "[s]top the authority of any atorney [sic] to represent me," remarking, "This is my second plea to withdraw all attorneys from my case."

Due to a scheduling conflict, the case was transferred to Judge Leslie A. Lewis. Dr. Bakalov once again made it clear that he wished to represent himself. In a letter to Judge Lewis dated May 21, 1991, Dr. Bakalov stated, "I want to represent myself." He also stated, "I cancel all the power of my public defenders to represent me."

At a hearing on May 24, 1991, Judge Lewis denied Dr. Bakalov's request, ruling from the bench as follows:

Defendant's motion to represent himself is denied. The court specifically finds the Legal Defenders Association represented the Defendant at a preliminary hearing, knows the facts of the case, is prepared to proceed and is willing to proceed. Further, the court finds the Defendant's best interests would not be served by self-representation since the defendant could not effectively represent himself due to communication problems, a lack of knowledge about even the basics of the laws and the American legal system, Defendant's inability to meet with and meaningfully prepare for trial while in jail.

Dr. Bakalov renewed his request to proceed without legal counsel at the scheduling conference on July 2, 1991. Dr. Bakalov disclaimed the legal defender attorney as his attorney, stating, "I refuse my attorney." He also wrote a letter to Presiding Judge Michael Murphy, received July 7, 1991, requesting dismissal of his court appointed attorneys. Dr. Bakalov referred to his attorneys as "pseudoattornies" and complained that they had refused to file motions which he requested.

In his many letters, Dr. Bakalov repeated his belief that his court appointed defense attorneys were working for the State and that they intended to assist in finding him guilty in order to keep in favor with the juries. Dr. Bakalov also expressed a belief that his attorneys were cooperating with Dr. Gay in an attempt to keep Dr. Bakalov and his family from immigrating to the United States. For these reasons, Dr. Bakalov stated that he did not intend to cooperate with his court appointed attorneys. 1

On the first day of trial, Dr. Bakalov, through his attorney, Mr. Valdez, again asked the court to dismiss both Mr. Valdez and Mr. Esqueda as his attorneys. The court denied the motion and assured Dr. Bakalov that he would be given latitude in terms of approaching the court and "essentially engaging in some self representation." In making its ruling, the court stated:

But in order to move the trial forward and protect his interests, we will go forward with Mr. Valdez and Mr. Esqueda representing him. It's the court's determination that he would not be able to knowingly and intelligently waive his right to counsel at this time. His knowledge of the American legal system, his knowledge of the American, or the English language, together with the totality of the issues that have been raised in previous motions in connection with self-

representation have been carefully considered by the court, and at this time, we will move forward with Mr. Valdez and Mr. Esqueda representing the defendant

Following a three day bench trial, Judge Lewis found Dr. Bakalov guilty of rape and sentenced him to five years to life in the Utah State Prison. Dr. Bakalov subsequently appealed, asserting that the trial court had violated his right to self-representation under the United States and Utah Constitutions.

Right to Self-Representation

The right to defend oneself in a criminal prosecution is well established under the Sixth Amendment to the United States Constitution. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). In Faretta, the United States Supreme Court held that the Sixth Amendment implicitly guarantees the right of a competent defendant to represent herself or himself in state criminal actions. Id. at 834-36, 95 S.Ct. at 2541. The Court found that this right must be protected in harmony with the Sixth Amendment's guarantee to the assistance of counsel. Id. at 834, 95 S.Ct. at 2540.

The Faretta Court detailed the long history of Anglo-American criminal jurisprudence sanctioning self-representation. The opinion noted the only tribunal that had required a competent defendant to have counsel in a criminal proceeding was the infamous Star Chamber. 2 Id. at 821, 95 S.Ct. at 2534. When the English abolished the Star Chamber in 1641, "[t]he notion of obligatory counsel disappeared with it." Id. at 823, 95 S.Ct. at 2535.

Self-representation continued as a common practice in the early colonies. While most of the colonies allowed representation by counsel, most colonists distrusted lawyers. Thus, the documents establishing the right to counsel provided that the accused could plead through a lawyer or represent himself or herself. Id. at 828, 95 S.Ct. at 2538. In no instances did a colonial court require a defendant in a criminal case to accept an unwanted lawyer. Id. at 828, 95 S.Ct. at 2537.

The Faretta Court also scrutinized the interaction between a criminal defendant and his or her attorney, in recognizing the right of self-representation. The Court noted that while an attorney is usually beneficial to an accused, the "potential advantage of a lawyer's training and experience can be realized, if at all, only imperfectly" if the representation is against the defendant's wishes. Id. at 834, 95 S.Ct. at 2540. "To force a lawyer on a defendant can only lead him to believe that the law contrives against him." Id. Because the right to defend oneself is a personal right and the defendant ultimately bears the consequences of a conviction, the defendant "must be free personally to decide whether in his particular case counsel is to his advantage. And although he may conduct his own defense ultimately to his own detriment, his choice must be honored out of 'that respect for the individual which is the lifeblood of the law.' " Id. at 834, 95 S.Ct. at 2540-41 (quoting Illinois v. Allen, 397 U.S. 337, 350-51, 90 S.Ct. 1057, 1064, 25 L.Ed.2d 353 (1970) (Brennan J., concurring)). For these reasons, the Court concluded that a state could not prevent a competent defendant from representing himself or herself. Id.

The right of self-representation is not unique to the Sixth Amendment. The Utah Constitution also specifically guarantees the right of an accused to "defend in person and by counsel." Utah Const. art. 1, § 12. As early as 1954, the Utah Supreme Court reversed a second degree murder conviction, holding that under the Utah Constitution, "[t]he right to defend in person certainly should not be denied an accused in a situation where he must either choose to use it or proceed with counsel in whom he has lost confidence." State v. Penderville, 2 Utah 2d 281, 272 P.2d 195,

199 (Utah 1954). 3 Utah's rules of criminal procedure also provide that "[a] defendant charged with a public offense [has] ... the right to represent himself." Utah R.Crim. P. 8

Inasmuch as the exercise of the right of self-representation necessarily constitutes a waiver of the...

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