State v. Bolsinger, 17736

Citation699 P.2d 1214
Decision Date05 April 1985
Docket NumberNo. 17736,17736
PartiesSTATE of Utah, Plaintiff and Respondent, v. John Charles BOLSINGER, Defendant and Appellant.
CourtSupreme Court of Utah

David L. Wilkinson, A.G., Robert N. Parrish, Asst. A.G., Salt Lake City, for Plaintiff and Respondent.

F. John Hill, Salt Lake City, for Defendant and Appellant.

HOWE, Justice:

Defendant appeals from a verdict convicting him of murder in the second degree.

On March 29, 1980, 33-year-old Kaysie Sorensen was found dead by her boyfriend, Mark Anger, in his apartment when he returned from a 24-hour shift as a firefighter. She was lying spread-eagled on the bed, all but her legs covered with a sheet. The cord of a clock radio resting on the bed was loosely tied around her neck. A catalogue advertising sexual paraphernalia and entitled "Romeo ... your Source of Sexual Pleasure" was nearby on the floor. "The Joy of Sex" and "Supersex," two books of explicit sexual literature, were in the nightstand by the bed. The living room seemed to indicate that a burglary had taken place. The contents of Kaysie's purse were scattered on the floor, a lamp was knocked over, and Mr. Anger's stereo was missing. Kaysie had last been seen alive on March 28, 1980, in Bill's Lounge in Magna, where she was a regular customer. She arrived there in a state of intoxication around 8:00 p.m. She sang along with a jukebox, danced by herself on the dance floor and "tried to kiss a lot of guys on the cheek up and down the bar." She finally approached the 23-year-old defendant when he entered the bar around 9:00 p.m., watched him play pool, put her arms around him between pool shots, kissed him on the cheek and finally left with him shortly before 10:00 p.m.

After preliminary investigation, defendant was arrested and booked in the Salt Lake County jail on April 1, 1980, where he made a confession in the early morning hours of April 2. According to the confession and later undisputed testimony at trial, defendant and Kaysie drove to defendant's home, where they picked up a bottle of whiskey and then continued to Mr. Anger's apartment. They played records on the stereo, danced and drank straight from the bottle for about an hour. Both were quite intoxicated. They went to the bedroom, partially undressed, lay down on the bed, and eventually engaged in sexual intercourse with defendant atop Kaysie.

Thereafter, the statements given in defendant's confession and at trial diverged. At trial defendant testified that after about five minutes he stopped for a moment to rest, started to get up, and Kaysie said "no." He rolled off to the side and she rolled over to pick up the clock radio, setting it down next to her. Neither of them commented about the radio. The couple resumed intercourse, defendant felt Kaysie move around, opened his eyes and saw the cord around her neck. They continued intercourse, and defendant opened his eyes again when he heard Kaysie say "pull." At this time she was holding the cord with her arms extended in a 45-degree upward angle. When questioned why he took hold of the cord, defendant replied, "she asked me to. I heard there was something like that, and I don't know where but I heard something like that." Defendant pulled "like tying your shoes" for about fifteen to twenty seconds, reached a climax and relaxed, still on top of Kaysie, then rolled off to the side. When he looked at her a few moments later, he noticed that Kaysie's face looked strange, not awake or reacting. He became afraid, got up, picked up his clothes, went into the living room, dressed and walked back into the bedroom. Kaysie was still in the same position. Defendant looked at her for a few moments, could not be sure at trial but thought that he put a sheet over her, picked up his bottle, returned to the living room, dumped the contents of her purse and left the apartment with the stereo.

This testimony paralleled the confession in all but three aspects. Defendant there stated that it was he who grabbed the radio and he who wrapped the cord around her neck after intercourse, but while he was still on top of her; that Kaysie "got kinda weirdlike," indignant; and that it just happened. He was not mad, there was no fight, "she just laid [sic] there." The confession ended with the following exchange:

Q. Do you know why it happened?

A. Wish I did.

Q. Have you ever been involved in anything else like this before?

A. Never. Not even close. Never even any, hurt anybody before.

At trial defendant explained that he had lied to the police in his taped confession. He had been told that the scene looked like a rape murder, but that if what he told the police did not happen during intercourse, the charge could be reduced. All he knew at that time was that he wanted to keep himself from being charged with first degree murder and being sentenced to death. He also did not think that anyone would believe the truth.

The State's medical examiner testified that the victim was wearing a vaginal contraceptive at the time of death. Sperm and seminal fluid were present in the vagina. Her alcohol blood level was .22. There was no structural damage to the neck. The hyoid bone and larynx were intact. A light horizontal ligature abrasion, approximately four inches long on the left side and three inches long on the right side, partially encircled the neck. There was no evidence of furrowing or any indication that the cord was ever knotted or in a tied position. Hemorrhages of the capillaries (petechial hemorrhages) above the ligature were located within the conjunctiva of the eyes, the right cheek and the scalp, a typical phenomenon resulting from strangulation by ligature. There was no hemorrhaging below the ligature mark. The medical examiner testified that, in addition to cutting off blood supply to the brain, pressure around the neck, and especially on the right and left carotid 1 sinuses, would slow the heart and respiratory rates, compounding the factors contributing to the fatal episode. He estimated that, with a ligature applied, unconsciousness would result within five to ten seconds. If it were immediately released, breathing would resume naturally. If the pressure were not then released but were to be continued, a victim's life could be saved only if he were resuscitated within thirty seconds to two and one-half minutes after losing consciousness. Pressure applied to the throat of an intoxicated person would produce death more quickly. This testimony was essentially corroborated by an expert witness for the defense. He testified that a third factor hastening death was the weight of defendant on Kaysie's chest, as evidenced by congestion of the blood vessels across the uppermost portion of the chest of the victim. That evidence stands unrebutted by the State. Both medical experts agreed that there was no trauma to the victim's private areas or thighs and no injury or other evidence indicating a struggle between the couple. The only other external marks found on the body were three very superficial scratches on the right cheek, between one and two millimeters long, as well as three small bruises, one on the back of the left hand and two on the top of the arch of the right foot.

Kaysie's boyfriend, Mark Anger, testified that Kaysie had a drinking problem, that during her drinking sprees she would be very depressed, that she had been drinking shortly before her death, that "she had to have sex all the time" and that she had difficulty achieving sexual gratification. He also admitted that he and Kaysie had explored some of the practices described in the literature but never engaged in "anything like that."

The defendant raises several issues on appeal. We have noted them all, but because of our holding conclude that two of them are dispositive.

I.

In his first point, defendant contends (1) that the trial court erred in refusing to suppress the taped confession in that the Miranda warnings given to defendant were vitiated by the failure of the police to scrupulously honor those rights and (2) that the defendant did not voluntarily waive his right to counsel or his right to remain silent. On the question of voluntariness, it is both the prerogative and the duty of the trial court to determine whether a defendant's confession should be admitted. State v. Ricci, Utah, 655 P.2d 690 (1982). The hearing on defendant's motion to suppress lasted two days. The court heard and considered all the evidence on the question of voluntariness as mandated by State v. Crank, 105 Utah 332, 142 P.2d 178 (1943). The court found the confession to have been voluntary, and absent an abuse of discretion that finding will not be overruled. State v. Watts, Utah, 639 P.2d 158 (1981); State v. Shuman, Utah, 639 P.2d 155 (1981); State v. Meinhart, Utah, 617 P.2d 355 (1980).

On the question of whether the Miranda warnings were vitiated by subsequent police conduct, we concede that the continued request by the police to defendant to tell his side of the story, after defendant repeatedly insisted that he would not make any statement until he had consulted with an attorney, bordered on behavior not sanctioned by constitutional guarantees. 2 However, we find it significant that the defendant was left alone between 6:00 p.m. and 3:00 a.m., when Officer Thompson was summoned at the defendant's request. This fact situation is different from Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), reh'g denied, 452 U.S. 973, 101 S.Ct. 3128, 69 L.Ed.2d 984 (1981), where police interrogation was again initiated by the police after Edwards had declined to make a statement in the absence of counsel and was told that he had to. Under the circumstances here, the trial judge could well have found that defendant initiated the subsequent communications with Thompson and that his statements amounted to a valid waiver of his fundamental right to counsel and were therefore admissible at trial. We affirm the denial of the motion...

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