State v. Bolsinger

699 P.2d 1214, 1985 Utah LEXIS 798

• Court: Utah Supreme Court
• Decided: April 5, 1985
• Docket: 17736
• Status: Published

Opinions

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 carotid¹ 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 to suppress.

II.

Defendant next contends that the evidence was insufficient to convict him of murder in the second degree under any of the three theories advanced by the State. We shall examine the first two theories together, viz., (1) intentionally or knowingly causing the death of another, U.C.A., § 76-5-203(l)(a) (1978), or (2) causing the death of another while committing an act clearly dangerous to human life but intending to cause only serious bodily injury, U.C.A., § 76 — 5—203(l)(b) (1978). We review the evidence and all reasonable inferences to be drawn therefrom in the light most favorable to the jury verdict. State v. Johnson, Utah, 663 P.2d 48 (1983), and cases cited therein.

According to the State, defendant admitted that when Kaysie acted indignantly, he grabbed the clock radio, wrapped the cord around her neck and “just started pullin’ on it.” From that admission, the State would infer that defendant intended to kill, or at least cause serious bodily injury to, Kaysie. We have carefully read and analyzed the confession and find that it is incomplete and vague as to the defendant’s state of mind. He did not say or even imply in the confession that he put the cord around her neck because she looked indignantly at him. Indeed, he negates that inference by saying that he was not mad and that she did not poke fun at him or talk at all. His questioner did not ask him why he reached for the cord and placed it around her neck. The defendant simply said that he did it. His confession offers no clue or hint as to his mens rea. His questioner totally failed to explore that subject. Nothing in the exchange between defendant and Kaysie can form a basis from which an inference to kill or harm can be drawn. During the entire evening and night they were together, no anger was expressed, no threats were made, and no struggle or violence occurred. He stated he pulled on the cord for what “seemed like a second.” The incident was part of a consensual act of intercourse between two intoxicated persons in an atmosphere of tranquility. We thus conclude that the confession does not support an inference beyond a reasonable doubt that the defendant intentionally or knowingly killed Kaysie or intended to cause her serious bodily injury.

One further argument made by the State is not supported by the record. According to the State, the medical examiner testified that continuous pressure had to be applied to the ligature for three to five minutes to cause death. That is not an accurate statement of his testimony. Instead, the record reflects that after clarification on cross-examination, he conceded that the ligature here could have been applied for as short a time as thirty seconds. His reference to the three- to five-minute period concerned the time of unconsciousness and deprivation of oxygen to the brain, after which artificial resuscitation would likely be unsuccessful. The State’s version misstates the substance of the examiner’s testimony.

We next focus on the State’s third theory. Under section 76 — 5—203(1), criminal homicide constitutes murder in the second degree if the actor:

(c) Acting under circumstances evidencing a depraved indifference to human life, he [sic] engaged in conduct which creates a grave risk of death to another and thereby causes the death of another.

Section 76-1-501(1) presumes a defendant to be innocent until each element of the offense charged against him is proved beyond a reasonable doubt; the requisite ac-tus reus and mens rea set out in section 76-1-501(2) constitute the elements of the offense as follows:

(a) The conduct, attendant circumstances, or results of conduct prescribed, prohibited, or forbidden in the definition of the offense;

(b) The culpable mental state required.

We recently had an opportunity to clarify the apparent hiatus left by the legislative elimination in 1979 of the reckless state of mind previously required to find depraved indifference. In State v. Fontana, Utah, 680 P.2d 1042 (1984), we held the proper subjective mental state under that subsection to be “knowing,” one of four possible categories of mens rea required to prove criminal responsibility under section 76-2-101(1).³

Section 76-2-103 states:

A person engages in conduct:

(2) Knowingly, or with knowledge, with respect to his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or the existing circumstances. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.

Correlating the conduct, circumstances, and result required under the depraved indifference statute and the mens rea of knowledge as promulgated in State v. Fontana, supra, we conclude that the following elements had to be present to properly convict the defendant under the State's third theory:

1. The defendant engaged in conduct which created a grave risk of death to another and that conduct resulted in the death of another — the actus reus.

2. The defendant knew that his conduct or the circumstances surrounding his conduct created a grave risk of death to another — the mens rea.

3. Defendant acted under circumstances evidencing a depraved indifference to human life — a qualitative judgment to be made by the jury in determining the extent of the defendant’s conduct. It is not a description of the mens rea involved in the commission of the crime, but an evaluation of the actus reus.

See People v. LeGrand, 61 A.D.2d 815, 402 N.Y.S.2d 209, cert. denied, 439 U.S. 835, 99 S.Ct. 117, 58 L.Ed.2d 130 (1978); People v. Register, 90 A.D.2d 972, 456 N.Y.S.2d 562 (1982).

There is no question that defendant engaged in conduct creating a grave risk of death and actually resulting in death. It is the degree of culpability as well as the evaluation of the conduct that we question here. As enunciated under State v. Fontana, knowledge of one’s conduct or the circumstances surrounding the conduct is the cognizance that the conduct or the circumstances surrounding it create a life-endangering risk to another. Accord People v. Marcy, Colo., 628 P.2d 69 (1981) (knowing conduct under Colorado Depraved Indifference Statute).

We begin with the requisite mens rea. At trial the State stressed the discrepancy between the two versions of the defendant’s story. That discrepancy is deceiving at best. What emerges instead is an identical mens rea under both versions. Both in the confession and at trial, the defendant denied having intended any harm. No words, angry or otherwise, were exchanged by the couple. Defendant was not mad. There was no struggle. He was on top of the victim when he pulled the cord for what may have been no more than thirty seconds. The physical evidence is undisputed with respect to the absence of a struggle and to the position of the defendant when he pulled on the cord. Given those facts, reasonable minds must perforce entertain reasonable doubt that there was that degree of awareness with respect to the defendant’s conduct and surrounding circumstances to impute to him the knowledge that his conduct created a grave risk of killing Kaysie and that he possessed the medical knowledge that compounding factors existed which would hasten her death. There is, however, sufficient evidence that the defendant was aware of, but consciously disregarded, a substantial and unjustifiable risk that placing and/or pulling a cord around the victim’s neck would result in her death. That risk was of such a nature and degree that its disregard constituted a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from defendant’s standpoint. Such conduct is “reckless” under section 76-2-103(3).

In evaluating the defendant’s conduct, reasonable minds must be free from reasonable doubt that the defendant was guilty of depraved indifference to the grave risk of death created by his conduct. To constitute depraved indifference, the act must be one “which has been rather well understood at common law to involve something more serious than mere recklessness alone which has had an incidental tragic result.” People v. Poplis, 30 N.Y.2d 85, 89, 30 N.Y.S.2d 365, 366, 281 N.E.2d 167, 168 (1972). There must be a knowing doing of an uncalled-for act in callous disregard of its likely harmful effect on a victim, which is so heinous as to be equivalent to a “specific intent” to kill. Neitzel v. State, Alaska App., 655 P.2d 325 (1982); People v. France, 57 A.D.2d 432, 394 N.Y.S.2d 891 (1977). Depraved indifference to human life is characterized by unmitigated wickedness, extreme inhumanity or acts exhibiting a high degree of wantonness. People v. Northrup, 83 A.D.2d 737, 442 N.Y.S.2d 658 (1981).

In Neitzel, supra, the court enumerated four determining factors a jury should be asked when it evaluates conduct resulting in death and alleged to be depraved indifference: (1) the utility of the defendant’s conduct, (2) the magnitude of the risk, (3) the defendant’s knowledge of the risk, and (4) any precautions taken by the defendant to minimize that risk. In differentiating reckless⁴ conduct amounting to depraved indifference from conduct amounting to reckless manslaughter, the jury is asked to pay particular attention to the social utility of the defendant’s conduct and the precautions he takes to minimize the apparent risks. Id. at 336-337.

Much as the social utility in this case is lacking, it must nonetheless be assessed against the backdrop of a delicate situation which involved only the defendant in the consensual act of intercourse with a sexually sophisticated woman ten years his senior. The physical evidence present in the bedroom, the testimony at trial attesting to her lack of sexual fulfillment and the admission by her lover of two years (a witness for the State) that he and the victim had explored some of the suggestions found in the manuals do not attest to the depraved act of a murderer. Both medical experts were in agreement that the strangulation was accomplished with little force and was enhanced by at least one other factor, the high alcohol content in the blood of the victim. Both medical experts agreed that the ligature marks were light, resulting from momentary pressure. That physical evidence alone confirms the defendant’s attempt — albeit ineffective — to take precautions to minimize the risk of harm, and it negates the existence of a depraved indifference to human life. In sharp contrast to defendant’s conduct here, conduct in the following cases was properly held to constitute depraved indifference: Neitzel, supra (defendant fired several shots directly at girl friend while she sat on the ground. Some struck the ground within an inch of the victim before the fatal shot entered her head); People v. Lilly, 71 A.D.2d 393, 422 N.Y.S.2d 976 (1979) (defendant inflicted vicious and brutal injuries on 6V2-pound baby girl over period of one month and sought no medical attention to ease substantial pain); People v. LeGrand, 61 A.D.2d 815, 402 N.Y.S.2d 209 (1978), cert. denied, LeGrand v. New York, 439 U.S. 835, 99 S.Ct. 117, 58 L.Ed.2d 130 (1978) (defendant beat former wife to death, dragged her body down two flights of stairs, chopped her up and stuffed her into plastic bags for easier disposal); State v. Nicholson, Utah, 585 P.2d 60 (1978) (defendant neglected and mistreated small son for a period in excess of five months. Victim was found dead of malnutrition and dehydration in garbage, spoiled food and human feces reaching a depth of three feet in some places).

The evidence here simply does not support a finding of depravity in the conduct of the defendant that caused the death of Kaysie. The jury may well have been swayed by the reprehensible conduct of the defendant subsequent to her death. But that conduct is not before us for review. The evidence is undisputed that Kaysie was dead when defendant rose from the bed. He himself covered her face with a sheet, a universal gesture acknowledging death. At that moment the conduct which subjected him to a charge of criminal homicide came to an end.

We hold that there is insufficient evidence to support a conviction for murder in the second degree as charged, but that there is sufficient evidence to support a conviction for the included offense of manslaughter. The jury was given an instruction on manslaughter under section 76-5-205(1)(a) and (c). The defendant requested an additional instruction on that offense, which was refused. The jury necessarily found every fact required for conviction of that included offense. The defendant concedes that his conduct created a grave risk of harm which necessarily includes “recklessness,” which is the requisite state of mind for manslaughter. Defendant has thus impliedly consented to the reduction. Accordingly, by authority of section 76-1-402(5), we remand the case to the trial court with directions to set aside the verdict and to enter a judgment of conviction for manslaughter without the necessity of a new trial and to sentence the defendant accordingly. See State v. Bindrup, Utah, 655 P.2d 674 (1982).

DURHAM, J., concurs.

1 . From Greek "karoun,” to plunge into sleep or stupor; so called because compression of these arteries may cause unconsciousness because of impeded blood flow to the brain.

2 . Defendant was arrested at his home by Officer Beckstead at about noon on April 1, 1980, and agreed to go with him to take a polygraph test. He arrived at the Metropolitan Hall of Justice at 1:00 p.m. and waited in the presence of several officers until 2:30 p.m. when the test was finally administered by Officer Elliott. It lasted 1½ hours and indicated that defendant had lied. Defendant at that point requested counsel. Beckstead and Elliott went into the polygraph room to get a statement from defendant. Defendant renewed his request for counsel three times. The officers informed defendant of the degrees of homicide and penalties and possible charges against him and repeated that information by telephone to his mother in his presence. Apparently attempts to contact a lawyer were made after 5:00 p.m. but discontinued when one lawyer could not be contacted at his office. Defendant was finally formally arrested and booked into jail by Officer Thompson at around 6:00 p.m. Thompson told him once more "that he could possibly be charged with a capital offense which would be either life imprisonment or the firing squad.” He was asked again to "talk about it,” and again he requested counsel. Thompson left his card with defendant and told him and the desk sergeant that he could be reached at any hour. At midnight defendant asked the jailer to contact Thompson, who responded at 3:00 a.m., six hours before Thompson had told defendant that formal charges against him would be filed.

3 . The 1983 Legislature expanded criminal responsibility to include "a mental state otherwise specified in the statute defining the offense-” U.C.A., 1953, § 76-2-101(1) (Supp.1983).

4 . The requisite mens rea under the Alaska Depraved Indifference Statute.