SUPREME COURT OF ARIZONA
En Banc
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-06-0295-AP
Appellee, )
) Yavapai County
v. ) Superior Court
) No. CR950448
PHILLIP ALAN BOCHARSKI, )
)
Appellant. )
)
)
) O P I N I O N
__________________________________)
Appeal from the Superior Court in Yavapai County
The Honorable William T. Kiger, Judge
SENTENCE REDUCED
________________________________________________________________
TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Chief Counsel, Capital
Litigation Section
Deborah A. Bigbee, Assistant Attorney General
Attorneys for State of Arizona
DAVID GOLDBERG, ATTORNEY AT LAW Flagstaff
By David Goldberg
Attorney for Phillip Alan Bocharski
________________________________________________________________
M c G R E G O R, Chief Justice
¶1 A jury found Phillip Alan Bocharski guilty of first-
degree felony murder and burglary in the first degree. A judge
subsequently sentenced Bocharski to death. On appeal, this
Court affirmed Bocharski’s convictions, State v. Bocharski
(Bocharski I), 200 Ariz. 50, 63 ¶ 68, 22 P.3d 43, 56 (2001), but
reversed the death sentence, concluding that Bocharski received
inadequate funding for a mitigation investigation, id. at 62 ¶
62, 22 P.3d at 55. We remanded the case for resentencing. Id.
at 63 ¶ 68, 22 P.3d at 56.
¶2 On remand, a new jury found that the State had
established two aggravating factors beyond a reasonable doubt:
the murder was committed in an especially heinous or depraved
manner, Arizona Revised Statutes (A.R.S.) section 13-703.F.6
(Supp. 2007), 1 and the defendant was an adult at the time of the
offense and the victim was over the age of seventy years, A.R.S.
§ 13-703.F.9. The jury determined that the mitigation was not
sufficiently substantial to warrant leniency and that the death
penalty was appropriate.
¶3 Pursuant to Arizona Rule of Criminal Procedure
31.2(b), Bocharski’s appeal to this Court is automatic. We
exercise jurisdiction pursuant to Article 6, Section 5.3, of the
Arizona Constitution. For the reasons described below, we
reduce Bocharski’s sentence from death to natural life.
I. 2
1
We cite the current version of the applicable statute
because no revisions material to this decision have since
occurred.
2
We view the facts in the light most favorable to upholding
the jury’s verdict. State v. Tucker, 205 Ariz. 157, 160 n.1, 68
P.3d 110, 113 n.1 (2003).
2
¶4 In November 1994, Bocharski left Michigan, where his
family lived, and traveled to Arizona with an acquaintance named
Frank Sukis. 3 Initially, Bocharski and Sukis lived together, but
after several months Bocharski moved to Congress, where he lived
alone in a tent. In April 1995, Freeda Brown parked her travel
trailer about fifty yards from Bocharski’s camp. Soon after
Brown arrived, she met Bocharski and paid him several times to
do odd jobs and to drive her to perform errands.
¶5 On May 10, 1995, Bocharski and Sukis went to Richard
Towell’s campsite. At the resentencing hearing, Bocharski
testified that he was drunk when he left the camp at around four
or five o’clock in the afternoon. On the way back home from
Towell’s camp, Sukis and Bocharski stopped at the Arrowhead Bar
where, Bocharski testified, he “had a couple of bourbon and
cokes and a beer or two.” By the time Bocharski left the bar,
he testified, he was “three sheets into the wind.”
¶6 Sukis dropped Bocharski off down the road from his
campsite. On the way back to his site, Bocharski noticed that
the lights in Brown’s trailer were on and that her dog was
tangled up in the bushes outside the trailer. Bocharski
continued to consume whiskey and beer at his camp. After
3
Bocharski’s relationship with his wife and three children
had deteriorated due to his worsening alcohol abuse. Bocharski
and his wife separated in the spring of 1988 after approximately
five years of marriage.
3
fifteen or twenty minutes, Bocharski decided to go to Brown’s
trailer to let her know her dog was tangled up in the bushes.
Around nine-thirty at night, he knocked on Brown’s door and, as
she always did, she stepped back to let him inside.
¶7 Once inside, they discussed whether Brown wanted him
to unhook her dog from the bushes. Bocharski said that he was
concerned with the way Brown treated her animals; he had
observed her dog tangled and unable to reach its food and water
on several occasions. On one occasion, he saw kittens in jars
filled with water and speculated that Brown may have drowned
them. Bocharski testified that he does not remember what Brown
said during their argument, but that he just “snapped” and
stabbed Brown twice in the head, after which she “sat back on
her bed and leaned over to the side.” He stated that he then
lifted her feet onto the bed and covered her with a blanket. He
further testified that he panicked and wanted to make the
killing appear as part of a robbery, so he stole money from
Brown’s purse. Bocharski locked the door of the trailer and
returned to his campsite.
¶8 Several times during the days following the murder,
Dwayne Stalley drove by Brown’s trailer and, on the third
occasion, noticed that her dog’s rope was wound around the tree.
After no one answered the door of Brown’s trailer, he unwound
the dog. Upon finding the dog wound up again the next morning,
4
he became concerned. On May 13, 1995, Stalley and Sukis went to
investigate Brown’s whereabouts. Sukis popped open the door of
Brown’s trailer and found her deceased in her bed. Stalley then
called the sheriff.
¶9 Raymond Belmore, a patrol deputy for Yavapai County,
responded to the call. Belmore entered Brown’s trailer and saw
no signs of foul play. Belmore removed the blanket covering
Brown and, he testified, found the body decomposed and noticed
wounds to her face that he thought had been caused by her
kittens “eating at the flesh.”
¶10 Because Deputy Belmore concluded that Brown had died
of natural causes, he turned her trailer and property over to
her friends pursuant to her will. On May 14, 1995, however, the
medical examiner determined that Brown’s death was not likely to
have been from natural causes.
¶11 On May 15, 1995, Dr. Joseph Dressler, a forensic
pathologist, performed an autopsy. He found at least twenty-
four overlapping knife injuries; eight injuries resulted from
deeper penetrating stab wounds. With the exception of one small
wound on Brown’s right index finger, the wounds were confined to
the left side of Brown’s head and face. The doctor said one of
the wounds was fatal and would have rendered Brown unconscious
within seconds. The doctor testified that more than likely all
the wounds were inflicted in less than one minute. Although
5
Bocharski testified to stabbing Brown only twice, when faced
with the evidence that Brown had actually been stabbed many more
times, he said he did not remember causing the rest, but did not
dispute the evidence.
II.
A.
¶12 Bocharski’s first argument on appeal is that he did
not receive proper pretrial notice of the aggravating
circumstances alleged by the State. We review a failure to
provide timely notice of aggravating circumstances for
prejudice. State v. Cropper, 205 Ariz. 181, 184 ¶ 15, 68 P.3d
407, 410 (2003).
¶13 On June 1, 1995, the State charged Bocharski by
information. On June 27, 1995, the State filed a notice and
disclosure of its intent to seek the death penalty. Although
the State asserted it need not disclose specific aggravating
factors until after conviction, see Arizona Rule of Criminal
Procedure 15.1(g)(2) (1996), 4 the State also asserted it had
“provided complete discovery in this case which shows evidence
of at least three aggravating conditions: victim’s age; cruel
and heinous; for pecuniary gain.” After a hearing on April 18,
4
Current Rule 15.1(i)(2) (2008) requires the state to provide
notice of aggravating circumstances within sixty days of
arraignment, but applies only to cases in which the charging
document was filed on or after December 1, 2003.
6
1996, the trial court concluded that the State had disclosed the
factors it believed could be aggravating circumstances.
¶14 On September 19, 1996, six days after Bocharski was
convicted of first-degree felony murder and approximately seven
months before the original aggravation hearing, the State
submitted its Rule 15.1(g)(2) notice formally alleging the three
aggravating circumstances earlier listed: A.R.S. § 13-703.F.5
(pecuniary gain); A.R.S. § 13-703.F.6 (heinous, cruel or
depraved); and A.R.S. § 13-703.F.9 (victim’s age). On October
17, 2001, we remanded this case to the superior court for
resentencing. Three years before resentencing, in June 2003,
the State filed its notice asserting the same three aggravating
circumstances.
¶15 Bocharski argues he failed to receive proper notice of
the aggravating circumstances because he was not provided notice
until after he was convicted. 5 We rejected this precise argument
in State v. Hampton, 213 Ariz. 167, 174-75 ¶¶ 27-28, 140 P.3d
950, 957-58 (2006). See also State v. Ellison, 213 Ariz. 116,
135-36 ¶¶ 77-80, 140 P.3d 899, 918-19 (2006).
¶16 Moreover, Bocharski was not prejudiced by the timing
5
Bocharski does not dispute that the State complied with
then-existing notice requirements under Arizona Rule of Criminal
Procedure 15.1(g)(2) (requiring notice of aggravators no later
than ten days after a guilty verdict). The current death penalty
statute requiring pre-trial notice of aggravators did not take
7
of the notice he received of the aggravating circumstances.
Bocharski received notice of the aggravators the State intended
to prove months before the commencement of the guilt proceeding,
received the State’s formal notice of aggravators seven months
before the original sentencing phase, and received notice of the
same three aggravators three years before resentencing. See
Hampton, 213 Ariz. at 175 ¶ 28, 140 P.3d at 958 (finding no
prejudice when defendant received notice of the aggravating
circumstances eight months before the sentencing phase).
B.
¶17 Bocharski next maintains that using a death-qualified
jury violated his constitutional rights. We review
constitutional issues de novo. State v. Pandeli (Pandeli III),
215 Ariz. 514, 522 ¶ 11, 161 P.3d 557, 565 (2007).
¶18 This Court has consistently upheld death qualification
of jurors against constitutional challenge. See, e.g., State v.
Moody, 208 Ariz. 424, 449 ¶¶ 83-84, 94 P.3d 1119, 1144 (2004);
State v. Hoskins, 199 Ariz. 127, 141-42 ¶¶ 49-50, 14 P.3d 997,
1011-12 (2000).
¶19 Bocharski further claims that an improper shifting of
responsibility occurred between the original trial jury and the
resentencing jury with respect to the ultimate decision to
effect until August 2002, after Bocharski’s original trial. See
A.R.S. § 13-703.01.B (Supp. 2007).
8
sentence him to death. See Caldwell v. Mississippi, 472 U.S.
320, 328-29 (1985) (finding that a jury should not be “led to
believe that the responsibility for determining the
appropriateness of the defendant’s death rests elsewhere”). He
asserts that the first jury abdicated its responsibility for
imposing the death penalty to the second jury, and the second
jury was relieved of the gravity of its decision because the
jurors could rationalize that the first jury was responsible.
¶20 We have previously rejected similar arguments. See
Hampton, 213 Ariz. at 175 ¶ 31, 140 P.3d at 958 (rejecting the
defendant’s argument because the instruction made it clear that
the penalty phase jury was responsible for the sentencing
decision); Ellison, 213 Ariz. at 136 ¶ 83, 140 P.3d at 919. The
trial judge was correct in not instructing the original trial
jury that it was responsible for determining Bocharski’s
sentence: At the time of the original trial, jurors played no
role in finding aggravating factors or in sentencing a
defendant. Moreover, the resentencing jury received clear
instruction that it alone determined the appropriate sentence
for Bocharski.
C.
¶21 Following remand, Bocharski moved to re-impanel the
original jury, arguing that if a new jury were impaneled, nearly
the entire case would have to be retried so that the new jury
9
would have the same knowledge as the prior trial jury. The
trial judge denied the motion to impanel the original jury.
Before resentencing, in an apparent change of position,
Bocharski urged the court to limit the State’s presentation of
evidence related to guilt. Subsequently, the judge ruled, with
respect to the aggravation phase, that “the only testimony,
exhibits and evidence that are going to be admitted will be
those that are directly relevant to one of the three aggravating
circumstances that have been alleged.”
¶22 Bocharski now contends that his constitutional rights
were violated because he was sentenced before a jury that did
not hear all the evidence that was admitted at the guilt
proceeding. We rejected a similar argument in State v.
Anderson, 210 Ariz. 327, 347-48 ¶¶ 81-86, 111 P.3d 369, 389-90
(2005). Moreover, after the judge denied the motion to impanel
the original jury, Bocharski requested that only evidence
relevant to the aggravating factors be admitted in the
aggravation phase, and the judge granted that request.
¶23 Similarly, Bocharski asserts that A.R.S. § 13-
703.01.E, which requires jurors to determine whether any
aggravating fact “has been proven based on the evidence that was
presented at the trial or at the aggravation phase,” was
violated because the resentencing jury did not hear evidence
from the guilt proceeding that was relevant to aggravation,
10
mitigation, and whether to impose the death penalty. We
rejected this argument in Hampton, 213 Ariz. at 175 ¶¶ 29-30,
140 P.3d at 958.
¶24 Bocharski argues that prior case law resolving this
issue relied upon the premise that “nothing prevented [the
defendant] from introducing evidence from the guilt proceeding
at his sentencing proceeding,” Ellison, 213 Ariz. at 136 ¶ 82,
140 P.3d at 919, which is not the case here. Bocharski asserts
that many of the witnesses from the original guilt proceeding
were dead or otherwise unavailable when evidence was presented
to the resentencing jury.
¶25 With the exception of the cross-examination testimony
of Frank Sukis, who died before resentencing, Bocharski did not
seek to introduce evidence from the original trial. 6 Some of the
specific testimony to which Bocharski refers in his brief could
have been elicited by calling witnesses to testify during
resentencing. Bocharski also could have sought to introduce
testimony from unavailable witnesses by transcript, as the State
did with Sukis’s testimony. Further, through the testimony of
Mary Durand, a mitigation specialist, evidence from unavailable
6
Bocharski maintains that during the first trial, Sukis was
not permitted to answer questions regarding Bocharski’s drinking
habits around the time of the murder. Testimony from other
witnesses during the penalty phase, however, established that he
was drinking heavily before the murder.
11
witnesses was admitted in the penalty phase. We find
Bocharski’s attempt to distinguish the prior case law
unpersuasive.
D.
¶26 Next, Bocharski maintains that the court failed to
comply with Morgan v. Illinois, 504 U.S. 719 (1992). We review
errors concerning the life and death qualification of the jury
for an abuse of discretion. See State v. Jones, 197 Ariz. 290,
303 ¶ 26, 4 P.3d 345, 358 (2000).
¶27 The trial judge denied Bocharski’s request to death-
qualify the jurors with a questionnaire and informed counsel he
would use the voir dire method employed in State v. Roseberry,
210 Ariz. 360, 366 ¶ 28, 111 P.3d 402, 408 (2005), in which
jurors who had reservations about the death penalty were taken
into chambers for individual questioning. The trial judge
permitted each party to question jurors regarding the death
penalty and allowed each to conduct individual questioning even
if the potential juror did not express reservations about the
death penalty. The sentencing jury was selected from two
different panels; Bocharski makes no argument as to the
questioning of the first panel.
¶28 The second panel of prospective jurors received
general information about the crime of which Bocharski had been
convicted and the duty of the jury in the resentencing trial.
12
7
The judge asked for a show of
hands of anyone who would respond affirmatively to the
Witherspoon question and recorded their names. The court then
asked the panel if there is “anyone who believes that all
persons convicted of first degree murder should receive the
death penalty?” (Morgan question.) The judge then stated, “I
need the names of those people then.” Juror 2 raised his hand
and was rehabilitated upon further questioning. The judge then
stated:
Now that I clarified that again, are there any
other hands of people who would agree if you are found
guilty of first degree murder, then the only
conclusion should be the death penalty?
Do you understand what – what I am asking is,
this would not be an appropriate trial for you, and
the reason is a trial juror in this situation is to
consider all the testimony and evidence before making
that decision and has to consider the law as given to
them in this situation and then make a decision as to
what is the appropriate sentence.
Again, either way, anybody that I haven’t got on
the list yet who believes there is a question as far
as the death penalty is concerned one way or the
other?
7
Witherspoon v. Illinois, 391 U.S. 510 (1968).
13
No one raised a hand to have his or her name placed on the list
after the judge made this statement. The court and counsel then
individually questioned jurors whose names had been placed on
the list.
¶29 The following morning, defense counsel alleged that
four jurors had raised their hands after the judge initially
posed the Morgan question to the second panel. Counsel claimed
that although Juror 2 was questioned and rehabilitated, nothing
ever happened with respect to the other jurors who raised their
hands. Counsel requested the question be repeated, and the
judge agreed to refresh the remaining jurors “about both angles
of it.”
¶30 During the morning session, the judge explained the
capital sentencing process to the combined panel and then
addressed issues related to the death penalty, reiterating the
substance of the Witherspoon and Morgan questions and asking if
any jurors, after having an evening to think it over, would like
to have their names put on the list to have an individual
discussion with the judge. Jurors 90 and 92, who were
originally members of the second panel, raised their hands in
response to this question.
¶31 Thirty-five persons from the combined panel were then
randomly selected to sit in the jury box. During voir dire,
14
defense counsel asked all thirty-five jurors the Morgan
question. No one raised a hand in response to this question.
¶32 At Bocharski’s request, the trial judge repeated the
substance of both the Witherspoon and Morgan questions, excused
Jurors 90 and 92 after further questioning revealed that they
were automatically in favor of death upon conviction for first-
degree felony murder, and permitted counsel to conduct voir dire
about the death penalty. We find no failure to comply with the
dictates of Morgan v. Illinois.
E.
¶33 Bocharski next claims he was deprived of his right to
cross-examination, confrontation, a fair sentencing trial, and
due process because the court admitted excised portions of
Sukis’s testimony from the original trial. We review
evidentiary rulings that implicate the Confrontation Clause de
novo. State v. Tucker, 215 Ariz. 298, 315 ¶ 61, 160 P.3d 177,
194 (2007).
¶34 Sukis testified in the original trial and was subject
to cross-examination. Because Sukis was not available as a
witness at resentencing, Bocharski moved to preclude the State
from reading into the record or making any reference to Sukis’s
prior testimony.
¶35 The trial judge ruled that Sukis’s testimony was
admissible insofar as it related to specific aggravators alleged
15
by the State. The judge reasoned that Bocharski had an
opportunity to cross-examine Sukis under oath at the original
trial when the aggravators alleged at resentencing “were on the
table.”
¶36 Most of the testimony provided by Sukis related to the
pecuniary gain aggravating factor, which the resentencing jury
did not find. The resentencing jury did hear a few of his
statements related to the heinous or depraved aggravator (F.6)
and the age of victim aggravator (F.9). Specifically, Sukis
testified about the age of the victim, stating, “She’s 84 – 85
years old.” Sukis also described the victim when he found her
in her trailer: (1) “She was laying on the side, more in fetal
position, right side. Arms between her knees; somewhat of a
fetal position,” and (2) “I seen all the wounds on her head and
face,” which were on “[t]he left side.”
¶37 Bocharski contends that admitting Sukis’s testimony
violated the hearsay rule and the Confrontation Clause. In
criminal proceedings, former testimony is not excluded by the
hearsay rule if the declarant is unavailable as a witness and
“[t]he party against whom the former testimony is offered was a
party to the action or proceeding during which a statement was
given and had the right and opportunity to cross-examine the
declarant with an interest and motive similar to that which the
party now has.” Ariz. R. Crim. P. 19.3(c); see also Ariz. R.
16
Evid. 804(b)(1). Admission of testimonial hearsay violates the
Confrontation Clause of the Sixth Amendment unless the declarant
is unavailable and the defendant had a prior opportunity for
cross-examination. See Crawford v. Washington, 541 U.S. 36, 68
(2004).
¶38 Confrontation Clause and hearsay rule violations are
subject to harmless error analysis. See State v. Bass, 198
Ariz. 571, 580-81 ¶ 39, 12 P.3d 796, 805-06 (2000) (considering
whether admission of evidence that violated the hearsay rule and
the Confrontation Clause was harmless). “[E]rroneously admitted
evidence is harmless in a criminal case only when the reviewing
court is satisfied beyond a reasonable doubt that the error did
not impact the verdict.” Id. at 580 ¶ 39, 12 P.3d at 805.
¶39 Even if we assume arguendo that the trial judge erred
in admitting Sukis’s testimony, which had been redacted to
include only testimony that related to the alleged aggravators,
Bocharski cannot show the error impacted the verdict. The
majority of the testimony read to the jury related to the
pecuniary gain aggravator, which the jury did not find. 8
¶40 Sukis’s testimony related to the two aggravators that
the jury did find was superfluous, as other proof supported
8
For example, Sukis testified that Bocharski came into money
the day after the murder and then told Sukis the money was an
advance to do a “hit job.”
17
those aggravators. See id. at 581 ¶ 40, 12 P.3d at 806 (“A
proposition sought to be proven by tainted evidence is
‘otherwise established’ only where we are convinced beyond a
reasonable doubt that the tainted evidence was superfluous and
could not have affected the verdict.”).
¶41 Sukis’s testimony about the victim’s age was
superfluous; Brown’s daughter testified to her mother’s age and
copies of the victim’s birth and death certificates were
admitted into evidence. The limited testimony from Sukis
related to the heinous or depraved aggravator also was
superfluous. The first officer on the scene testified that
Brown was found lying on her right side with her legs slightly
drawn up as though in a fetal position. Also, Dr. Dressler
detailed the number, location, and type of wounds Brown
suffered. Therefore, admission of Sukis’s testimony related to
the two aggravators found by the jury was, at most, harmless
error. 9
F.
9
Bocharski also asserts that admitting Sukis’s testimony
violated his due process and Eighth Amendment rights. These
arguments were stated but not supported in the briefs submitted
to this Court. Arizona Rule of Criminal Procedure 31.13(c)(vi)
requires that arguments contain “the reasons therefor, with
citations to the authorities, statutes and parts of the record
relied on.” We therefore do not consider these assertions.
18
¶42 Bocharski maintains that the court committed
fundamental error by failing to give a lost or unpreserved
evidence instruction pursuant to State v. Willits, 96 Ariz. 184,
393 P.2d 274 (1964). We review a trial court’s decision to grant
or deny a requested Willits instruction for an abuse of
discretion. State v. Murray, 184 Ariz. 9, 33, 906 P.2d 542, 566
(1995).
¶43 A forensic pathologist conducted an autopsy of the
victim’s body on the evening of May 15th, nearly five days after
death. The defense did not conduct an independent autopsy. 10
¶44 During the original trial, Bocharski asserted that the
State should have preserved the evidence, and the judge gave the
jury a Willits instruction. The defense did not request that a
Willits instruction be given during the resentencing trial, and
none was given. Bocharski now claims that he was prejudiced by
not being able to conduct an independent autopsy to establish
that some of the wounds were caused by the victim’s cats eating
her flesh. We review for fundamental error. State v.
Henderson, 210 Ariz. 561, 567 ¶ 19, 115 P.3d 601, 607 (2005)
(“Fundamental error review . . . applies when a defendant fails
to object to alleged trial error.”). Fundamental error is
10
Bocharski contends that the body was not preserved or made
available for an independent autopsy even though he was already
in custody. Bocharski, however, does not cite to any portion of
the record that supports this statement.
19
limited to “error going to the foundation of the case, error
that takes from the defendant a right essential to his defense,
and error of such magnitude that the defendant could not
possibly have received a fair trial.” Id. (quoting State v.
Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984)). To prevail
on such a claim, the defendant bears the burden of proving that
fundamental error exists and that the error caused him or her
prejudice. Id. ¶ 20.
¶45 We find no error, let alone fundamental error. The
resentencing record does not support the theory that Brown’s cats
inflicted any of the wounds. The jury heard uncontroverted
testimony that the wounds were caused by a “knife-like weapon.”
Further, when asked about the interval of time between the
various wounds, the medical examiner stated: “There could have
been seconds, maybe minutes. A lot of these wounds were
associated – especially the ones to the cheek – there was blood
in the tissues, which indicated that [Brown] had a blood pressure
when these wounds were inflicted.” This limited time frame
further contradicts any theory the cats caused some of the
wounds.
¶46 Moreover, the defense did not rely at resentencing on
the theory that Brown’s cats inflicted the wounds. See State v.
Smith, 158 Ariz. 222, 227, 762 P.2d 509, 514 (1988) (“A Willits
instruction must be predicated on a theory supported by the
20
evidence, or else it should not be given, because such would tend
to mislead the jury.”). At resentencing, the defense pressed the
medical examiner to admit that he did not see anything during the
autopsy that indicated the wounds were not caused by “rapid
repeated motions of the knife.” No error occurred.
G.
¶47 Bocharski next asserts the court erred by failing to
instruct the jury that only first-degree murders above the norm
qualify for the death penalty. This Court reviews de novo
whether jury instructions correctly state the law. State ex rel.
Thomas v. Granville (Baldwin), 211 Ariz. 468, 471 ¶ 8, 123 P.3d
662, 665 (2005). Bocharski did not request an “above the norm”
instruction; therefore we review for fundamental error.
¶48 Bocharski relies on language in State v. Andriano to
argue that the court should have given an above the norm
instruction. 215 Ariz. 497, 506 ¶ 43, 161 P.3d 540, 549 (2007).
In Andriano, the defendant argued the trial court erred by
instructing the jury that “the (F)(6) aggravating circumstance
‘cannot be found to exist unless the murder is especially
heinous, cruel or depraved, that is, where the circumstances of
the murder raise it above the norm of other first degree
murders.’” Id. ¶ 42. We found the court did not err in giving
this instruction. Id. ¶ 43. We did not, however, direct that
courts must provide such an instruction. Id.
21
¶49 Andriano relied on a statement in State v. Carlson, 202
Ariz. 570, 582 ¶ 45, 48 P.3d 1180, 1192 (2002), that “the death
penalty should not be imposed in every capital murder case but,
rather, it should be reserved for cases in which either the
manner of the commission of the offense or the background of the
defendant places the crime ‘above the norm of first-degree
murders.’” Andriano, 215 Ariz. at 506 ¶ 43, 161 P.3d at 549. In
Carlson, we reasoned that to ensure reservation of the death
penalty for those crimes above the norm of first-degree murders,
the sentencing scheme “must narrow the class of persons to those
for whom the sentence is justified.” 202 Ariz. at 582 ¶ 45, 48
P.3d at 1192. We noted that statutory aggravators in Arizona’s
death penalty scheme narrow the class of first-degree murderers
who are death eligible. Id.
¶50 Here, the jury found two aggravators proven beyond a
reasonable doubt. Thus, the class of persons to which the death
penalty may apply was constitutionally narrowed before the jury
reached the penalty phase, making an above the norm instruction
unnecessary. 11
H.
11
We have previously rejected Bocharski’s related argument
that the jury should have been instructed to conduct a
proportionality review. See State v. Johnson, 212 Ariz. 425,
431-32 ¶¶ 19-20, 133 P.3d 735, 741-42 (2006).
22
¶51 Bocharski contends that permitting the jury to hear
victim impact evidence during the penalty phase of a death case
violates the Eighth Amendment by infusing irrelevant emotion into
the jury’s consideration of mitigation evidence. Payne v.
Tennessee, 501 U.S. 808, 827 (1991), however, “removed the per se
bar to the admission of victims’ statements regarding the effect
of a crime upon their lives.” Lynn v. Reinstein, 205 Ariz. 186,
191 ¶ 16, 68 P.3d 412, 417 (2003). Under A.R.S. § 13-703.01.R,
“the victim may present information about the murdered person and
the impact of the murder on the victim and other family members
and may submit a victim impact statement in any format to the
trier of fact.” Statements regarding impact on family members
and information about the murdered person do not violate the
Eighth Amendment because they are “relevant to the issue of the
harm caused by the defendant.” Ellison, 213 Ariz. at 140-41 ¶
111, 140 P.3d at 923-24. Nevertheless, while victim impact
evidence that focuses on the effect of the crime on the victim’s
family is generally admissible, it cannot be “so unduly
prejudicial that it renders the trial fundamentally unfair.”
Hampton, 213 Ariz. at 181 ¶ 58, 140 P.3d at 964 (quoting Payne,
501 U.S. at 825).
¶52 Bocharski claims that the court erred by admitting the
victim impact testimony provided by Brown’s daughter because it
lacked relevance to any mitigation and was unduly prejudicial.
23
“The admission of victim impact evidence is reviewed for abuse of
discretion.” State v. Garza, 216 Ariz. 56, 69 ¶ 60, 163 P.3d
1006, 1019 (2007).
¶53 The statements in this case properly focused on the
impact of the crime on the victim’s family and were not unduly
prejudicial. Moreover, the trial judge appropriately instructed
the jurors that they could consider the victim impact statement
only to rebut the mitigation evidence. We find no error.
I.
¶54 Bocharski next asserts that the court erred by
admitting stipulated testimony as rebuttal evidence. We review a
trial court’s ruling on the admission of rebuttal evidence for an
abuse of discretion. See Pandeli III, 215 Ariz. at 527 ¶ 41, 161
P.3d at 570.
¶55 While awaiting trial, Bocharski was involved in an
assault on Donald Fields, a fellow inmate in the Yavapai County
jail. Bocharski I, 200 Ariz. at 58 ¶ 35, 22 P.3d at 51. Fields
was inadvertently placed near a prisoner whom he had previously
helped the police apprehend. Id. Fields testified that this
prisoner and other inmates, including Bocharski, attacked him.
Id. In Bocharski’s original trial, the judge admitted Fields’
testimony in the form of a stipulation. Id. ¶ 36. The parties
stipulated as follows:
24
Don Fields was arrested on January 15, 1996 for
not paying a traffic ticket. He was taken to the
Prescott Jail. By coincidence he was put in Jail with
a person he helped to catch the previous September,
1995. This person had taken a lady’s purse at
Albertson’s in Prescott and Mr. Fields had helped to
catch him. The fact that Mr. Fields had helped to
catch this person became generally known to the people
in the jail cell.
Mr. Bocharski was in that jail area and he
approached Mr. Fields. Mr. Bocharski told Mr. Fields,
‘I’m in here for murder and there is nothing they can
do to me, if it were up to me, you’d be dead right
now.’
At a separate time, Mr. Bocharski told Mr. Fields,
‘I’m in here for murder because of a snitch like you.’
Mr. Bocharski made these statements to Mr. Fields
in a serious and threatening manner.
In 1997, Bocharski pled guilty to kidnapping and aggravated
assault in connection with the Fields incident.
¶56 In its motion to present rebuttal evidence, the State
argued that the Fields evidence was relevant to rebut the claim
that Bocharski “snapped” and murdered Brown because the assault
on Fields provided evidence of infliction of serious harm in a
separate incident. The State also argued that the evidence
rebutted the mitigating circumstance that Bocharski was
intoxicated at the time of Brown’s murder because the assault on
Fields occurred while he was incarcerated and not under the
influence of alcohol. Moreover, anticipating testimony by
witnesses that Bocharski was kind and gentle, the State argued
the Fields evidence could be admitted to rebut such claims.
Bocharski disagreed with the State’s arguments and further
25
asserted that the Fields evidence should not be admitted because
the State lost a document that identified the witnesses to the
Fields incident, making it difficult for Bocharski to investigate
the statements made by those who witnessed the incident.
¶57 The trial judge concluded that the State “gets an
opportunity to present the Fields information during the penalty
phase.” Due to the missing document, however, the trial judge
held an evidentiary hearing to determine the proper scope of the
evidence to be admitted.
¶58 After hearing testimony from the witnesses about the
significance of the lost document, the trial judge ruled that,
although the jury would be allowed to hear some of the Fields
evidence, the State would be limited to explaining Bocharski’s
role in the incident. The defense continued to object to
admission of the Fields evidence in any form, but argued that if
the evidence were admitted, it should be limited to the evidence
in the stipulation. The trial judge agreed and limited evidence
of the Fields incident to the stipulation and the judgment of
conviction.
1.
¶59 In the original appeal, we found that the portion of
the stipulation that quoted Bocharski as stating, “if it were up
to me, you’d be dead right now,” was not relevant because it did
not relate to the victim or the crime of which Bocharski was
26
accused. Bocharski I, 200 Ariz. at 58 ¶ 38, 22 P.3d at 51. We
concluded that this statement was used to show Bocharski’s
propensity for violence, which was improper because he had not
placed his character at issue. Id.
¶60 At resentencing, the trial court admitted the Fields
stipulation as rebuttal evidence in the penalty phase, after
finding that Bocharski’s mitigation evidence placed his character
for peacefulness at issue. Bocharski maintains that, based on
this Court’s ruling after the original trial, the Fields evidence
was inadmissible under the “law of the case” doctrine. The “law
of the case” is
a rule of general application that the decision of an
appellate court in a case is the law of that case on
the points presented throughout all the subsequent
proceedings in the case in both the trial and the
appellate courts, and no question necessarily involved
and decided on that appeal will be considered on a
second appeal or writ of error in the same case,
provided the facts and issues are substantially the
same as those on which the first decision rested, and,
according to some authorities, provided the decision is
on the merits.
State v. King, 180 Ariz. 268, 278, 883 P.2d 1024, 1034 (1994)
(quoting In re Monaghan’s Estate, 71 Ariz. 334, 336, 227 P.2d
227, 228 (1951)).
¶61 The law of the case doctrine did not preclude admission
of the Fields stipulation as rebuttal evidence because the issue
at resentencing differed from that considered by this Court in
the original appeal.
27
2.
¶62 Bocharski next contends that the Fields evidence does
not meet the relevancy threshold for admissibility. In Hampton,
213 Ariz. at 179 ¶ 47, 140 P.3d at 962, we observed that “[t]he
only limit that § 13-703(C) places on the State’s evidence at the
penalty phase is that it must be ‘relevant’ to the issue of
mitigation.” We cautioned, however, that “[t]rial courts can and
should exclude evidence that is either irrelevant to the thrust
of the defendant’s mitigation or otherwise unfairly prejudicial.”
Id. at 180 ¶ 51, 140 P.3d at 963.
¶63 As the trial judge noted, Bocharski presented witnesses
he knew during his childhood who described him as gentle, polite,
well-mannered, and shy. The thrust of this mitigation evidence
was to show that Bocharski has a peaceful character. The Fields
stipulation rebutted this mitigation evidence and therefore was
relevant to the issue of mitigation.
¶64 Moreover, the trial court limited the State to
presenting evidence of Bocharski’s role in the incident. The
probative value of the Fields stipulation was not substantially
outweighed by the prejudicial nature of the evidence and
therefore the trial court did not abuse its discretion in
admitting the stipulation. See State v. McGill, 213 Ariz. 147,
157 ¶ 40, 140 P.3d 930, 940 (2006) (stating that “the judge’s
analysis [of evidence under A.R.S. § 13-703] . . . involves
28
fundamentally the same considerations as does a relevancy
determination under Arizona Rule of Evidence 401 or 403”).
3.
¶65 Bocharski also asserts that the Fields stipulation was
hearsay that he was not given the opportunity to rebut or
explain. In State v. Greenway, we recognized that due process
requires that a capital defendant be given notice of any hearsay
statement the state intends to introduce as rebuttal to
mitigation. 170 Ariz. 155, 161, 823 P.2d 22, 28 (1991). In
addition, the defendant must have an “opportunity to either
explain or deny” the hearsay statement. Id. The Due Process
Clause also demands that hearsay statements “have sufficient
indicia of reliability.” McGill, 213 Ariz. at 160 ¶ 56, 140 P.3d
at 943.
¶66 More than a year before resentencing, the State gave
Bocharski notice that it might introduce the Fields evidence,
depending on the mitigation evidence presented at trial. The
State offered to have Fields testify in the penalty phase, but
Bocharski’s counsel specifically requested that if any Fields
evidence were admitted, it be limited to the stipulated statement
admitted in the original guilt trial. If Fields had testified,
Bocharski could have cross-examined him. Bocharski therefore
cannot complain about the use of the stipulation rather than live
testimony. In any event, Bocharski testified about the incident
29
4.
¶67 Bocharski further argues that his rights under the
Confrontation Clause were violated by admission of this hearsay
evidence. The Confrontation Clause does not apply to hearsay
used to rebut mitigation. See McGill, 213 Ariz. at 159 ¶¶ 51-52,
140 P.3d at 942.
5.
¶68 Bocharski reasons that admission of this evidence
without any chance of rebuttal violates the Eighth Amendment “by
permitting uncontested evidence to be used to sentence a man to
die.” This claim fails because the evidence contains sufficient
indicia of reliability and Bocharski did have an opportunity to
explain the incident.
6.
¶69 Finally, Bocharski alleges that the statutes and rules
governing the admissibility of mitigation evidence violate due
process and the Eighth Amendment because they allow the state to
offer “any evidence,” subject to a very minimal threshold of
relevance, amounting to an unguided, vague aggravating
circumstance. We rejected a similar argument in Hampton, noting
that A.R.S. §§ 13-703.01.G and 13-703.C contain “an express
30
relevance requirement, mandating that the State’s evidence be
relevant to the determination of whether there is mitigation that
is sufficiently substantial to call for leniency.” 213 Ariz. at
179 n.11 ¶ 47, 140 P.3d at 962 n.11 (internal quotation omitted).
In addition, the jury was instructed at the conclusion of the
penalty phase: “You may not consider any information presented
during this phase of the trial as a new aggravating factor.”
J.
¶70 Bocharski also argues the court abused its discretion
by ruling that the admission of Bocharski’s surrebuttal evidence
would open the door to further rebuttal evidence by the State.
We review the admission of surrebuttal evidence by the trial
court for an abuse of discretion. State v. Steelman, 120 Ariz.
301, 319, 585 P.2d 1213, 1231 (1978).
¶71 The trial judge admitted a sanitized version of the
Fields incident to allow the State to rebut testimony describing
Bocharski’s character as polite, well-mannered, and shy. After
admitting the stipulation and a copy of the judgment of
conviction in the Fields matter, the State rested in rebuttal.
In surrebuttal, Bocharski moved to admit his Arizona Department
of Corrections records and an expert’s risk assessment report.
The trial court stated that if these exhibits were admitted, the
State would be permitted to present another witness or other
31
12
The defense then withdrew the proffered exhibits.
¶72 Bocharski maintains that the court’s ruling permitting
the State to introduce evidence in response to Bocharski’s
surrebuttal violated his constitutional rights by denying him the
opportunity to present a complete defense. This claim fails for
several reasons.
¶73 First, the trial judge did not deny admission of
Bocharski’s surrebuttal exhibits; rather, the judge ruled the
surrebuttal exhibits would themselves be subject to rebuttal and,
after receiving this ruling, Bocharski elected to withdraw the
exhibits. Second, as conceded by Bocharski, his case-in-chief
did not present any evidence related to his propensity for
violence in an institution. Thus, Bocharski’s surrebuttal
exhibits presented new mitigation evidence to show his lack of
future dangerousness in an institution. The trial court did not
abuse its discretion by ruling that the State could rebut this
new evidence. See State v. Talmadge, 196 Ariz. 436, 440 ¶ 18,
999 P.2d 192, 196 (2000) (“Surrebuttal testimony may be offered
12
Bocharski contends that the trial court ruled that the State
would be permitted to “offer in surrebuttal additional details of
the ‘Fields incident.’” The trial court, however, did not rule
that additional details of the Fields incident would be
admissible, but only that the State could admit evidence
pertaining to the issue of future violence in an institution.
The defense withdrew the surrebuttal exhibits before the court
further defined the specific evidence the State could admit.
32
to introduce evidence in response to new rebuttal testimony or to
impeach rebuttal testimony and must be more than cumulative.”).
K.
¶74 Bocharski contends he was deprived of his right to due
process as a result of prosecutorial misconduct. We will reverse
a conviction because of prosecutorial misconduct if misconduct is
present and “a reasonable likelihood exists that [it] could have
affected the jury’s verdict, thereby denying defendant a fair
trial.” Anderson, 210 Ariz. at 340 ¶ 45, 111 P.3d at 382
(citation omitted). When a defendant objects to an alleged act
of prosecutorial misconduct, the issue is preserved; when a
defendant fails to object, the Court engages in fundamental error
review. See State v. Velazquez, 216 Ariz. 300, 311 ¶ 47, 166
P.3d 91, 102 (2007). Even if the alleged acts of misconduct do
not individually warrant reversal, we must determine whether the
acts “contribute to a finding of persistent and pervasive
misconduct.” State v. Roque, 213 Ariz. 193, 228 ¶ 155, 141 P.3d
368, 403 (2006). We will reverse a conviction because of
prosecutorial misconduct if the cumulative effect of the alleged
acts of misconduct “shows that the prosecutor intentionally
engaged in improper conduct and did so with indifference, if not
a specific intent, to prejudice the defendant.” Id. (citation
and internal quotation omitted).
33
¶75 Our thorough review of the record discloses no action
by the prosecutor that we regard as constituting misconduct.
Absent any finding of misconduct, there can be no cumulative
effect of misconduct sufficient to permeate the entire
atmosphere of the trial with unfairness. See State v. Hughes,
193 Ariz. 72, 79 ¶ 26, 969 P.2d 1184, 1191 (1998) (“To determine
whether prosecutorial misconduct permeates the entire atmosphere
of the trial, the court necessarily has to recognize the
cumulative effect of the misconduct.” (emphasis added)).
L.
¶76 Bocharski next contends that, in this particular case,
applying Arizona’s amended death penalty statutes violated the
prohibition against ex post facto laws. We review
constitutional issues de novo. Pandeli III, 215 Ariz. at 522 ¶
11, 161 P.3d at 565.
¶77 In State v. Ring (Ring III), 204 Ariz. 534, 547 ¶ 23,
65 P.3d 915, 928 (2003), we held that “Arizona’s change in the
statutory method for imposing capital punishment is clearly
procedural” and does “not resemble the type of after-the-fact
legislative evil contemplated by contemporary understandings of
the ex post facto doctrine.” Further, we held that the change
did not deny capital defendants any substantial protections:
“The new sentencing statutes do not place the defendants in
jeopardy of any greater punishment” because the state must prove
34
beyond a reasonable doubt the same aggravating circumstances
required by the former statute, the only difference being that a
jury, instead of a judge, decides whether the state has proved
its case. Id. ¶ 24.
¶78 Bocharski argues that the unique procedural posture of
this case distinguishes it from Ring III. He asserts that he
was deprived of previously available substantive protections in
violation of the ex post facto prohibition because the jury was
not directed, as were judges under the previous statute, to make
special findings on aggravation and mitigation. We rejected
this argument in Ellison, 213 Ariz. at 146-47 app. n.21, 140
P.3d at 929-30 app. n.21.
III.
¶79 Bocharski’s offense occurred before August 1, 2002,
and therefore this Court independently reviews the aggravating
and mitigating circumstances as well as the propriety of the
death sentence. A.R.S. § 13-703.04. In conducting independent
review, “we consider the quality and strength, not simply the
number, of aggravating and mitigating factors.” Roque, 213
Ariz. at 230 ¶ 166, 141 P.3d at 405 (citation and quotation
omitted).
A.
¶80 On remand, the jury found two aggravating factors
proven beyond a reasonable doubt: The murder was committed in
35
an especially heinous or depraved manner, A.R.S. § 13-703.F.6, 13
and the defendant was an adult at the time of the offense and
the victim was over the age of seventy years, A.R.S. § 13-
703.F.9. We address each in turn.
1.
¶81 The State relied upon the testimony of Dr. Dressler,
who performed the autopsy on Brown, to support the F.6
aggravator. At resentencing, Dr. Dressler used a chart to
describe to the jury the injuries identified in the autopsy. The
chart noted seventeen incised wounds, 14 eight of which were
deeper penetrating stab wounds in which the knife entered
perpendicular to the surface. With the exception of one small
wound on Brown’s right index finger, all the wounds were confined
to the left side of Brown’s head and face. The doctor described
one of the wounds as fatal. This fatal wound entered near
Brown’s left ear and penetrated deep into the brain cavity, where
it contacted the foramen magnum of the base of the skull and
would have rendered Brown unconscious within seconds. Within
13
The State conceded that it could not establish cruelty and
thus asserted only the especially heinous and depraved prongs of
F.6.
14
Dr. Dressler indicated that Bocharski inflicted at least
twenty-four overlapping knife wounds. He derived this larger
number by adjusting for multiple penetrations in the same
location. In other words, while the doctor assigned each wound
only one number on his chart, the shape of some wounds indicated
the knife actually penetrated that location more than once.
36
four to five minutes after sustaining this injury, her brain
would have become non-functional. Another deep penetrating wound
entered the brain cavity and touched the base of the skull, but
was not necessarily fatal or immediately incapacitating. Dr.
Dressler described four other stab wounds that penetrated deep
into the cheek muscle as not immediately fatal. Another stab
wound broke Brown’s nasal bone. Another eight wounds were caused
by a slashing or slicing motion made when the knife was nearly
parallel to the surface of Brown’s skin.
¶82 Dr. Dressler stated on cross-examination that he
suspected all the wounds occurred fairly close together, with
“seconds, maybe minutes” between them. Upon further questioning,
he testified that “more than likely” all the injuries were caused
in less than one minute. Each of the wounds identified had
associated blood in the tissue, meaning Brown’s heart continued
beating while they were inflicted. The doctor could not tell the
order in which the wounds were inflicted, but testified that the
fatal wound, which would have been instantly incapacitating,
“probably” occurred early in the sequence.
¶83 “Heinousness and depravity refer to the mental state
and attitude of the perpetrator as reflected in his words and
actions.” State v. Jones, 205 Ariz. 445, 449 ¶ 15, 72 P.3d 1264,
1268 (2003) (citation and internal quotation omitted); see also
State v. Gretzler, 135 Ariz. 42, 51, 659 P.2d 1, 10 (1983)
37
(“[T]he statutory concepts of heinous and depraved involve a
killer’s vile state of mind at the time of the murder, as
evidenced by the killer’s actions.”). In Gretzler, we identified
five factors to consider in determining whether a killing was
especially heinous or depraved: (1) relishing the murder, (2)
infliction of gratuitous violence, (3) needless mutilation of the
victim, (4) senselessness of the crime, and (5) helplessness of
the victim. 135 Ariz. at 51-52, 659 P.2d at 10-11. The State
argued that the evidence supported findings of mutilation and
gratuitous violence.
¶84 We conclude that the State did not present sufficient
evidence to support a finding of mutilation beyond a reasonable
doubt. Mutilation requires an act separate and distinct from the
killing itself, committed with the intent to mutilate the
victim’s corpse. See Pandeli III, 215 Ariz. at 523-24 ¶ 20, 161
P.3d at 566-67. The evidence here does not support a finding
that Bocharski had a separate intent to mutilate. See State v.
Medina, 193 Ariz. 504, 514 ¶ 38, 975 P.2d 94, 104 (1999) (finding
mutilation not proven because evidence was not presented of a
separate purpose to mutilate the body). The State argues that
because some of the wounds were of a slashing or slicing nature,
as opposed to deep penetrating stab wounds, and because Brown did
not struggle during the attack, Bocharski intended to mutilate
Brown’s face. Those facts, however, differ substantially from
38
the acts we have previously regarded as sufficient to show
mutilation. See, e.g., State v. Pandeli (Pandeli I), 200 Ariz.
365, 376 ¶ 41, 26 P.3d 1136, 1147 (2001) (excising parts of the
victim’s breasts after her death); State v. Vickers, 129 Ariz.
506, 515, 633 P.2d 315, 324 (1981) (carving of word “Bonzai” in
victim’s back after killing him). The evidence also shows that
none of the wounds occurred post-mortem. Cf. State v. Jiminez,
165 Ariz. 444, 455, 799 P.2d 785, 796 (1990) (numerous post-
mortem stab wounds indicated needless mutilation). The evidence
presented in this case simply does not establish, beyond a
reasonable doubt, that Bocharski committed any separate and
distinct acts with the intent to mutilate Brown’s body.
¶85 While gratuitous violence presents a closer question,
we conclude that the State did not present sufficient evidence to
support a finding of gratuitous violence beyond a reasonable
doubt. Although our prior cases have not been entirely
consistent in describing the showing needed to establish
gratuitous violence, we have defined several basic principles.
Just as the mutilation factor focuses on the killer’s intent to
mutilate, see Pandeli III, 215 Ariz. at 523-24 ¶ 20, 161 P.3d at
566-67, so too does the gratuitous violence factor focus on the
intent of the killer as evidenced by his actions. 15 The fact
15
The third F.6 factor, especially cruel, also imposes an
intent requirement. The State must show that the perpetrator
39
finder must consider the killer’s intentional actions to
determine whether he acted with the necessary vile state of mind.
Before the fact finder considers the question of intent, however,
the state must show that the defendant did, in fact, use violence
beyond that necessary to kill.
¶86 Bocharski inflicted twenty-four knife wounds to the
head and face of Brown, who was probably unconscious during most
of those blows. See State v. LaGrand, 153 Ariz. 21, 36-37, 734
P.2d 563, 578-79 (1987) (finding gratuitous violence when a bound
and gagged man was stabbed twenty-four times). Certainly
Bocharski’s blows involved considerable violence. See State v.
Salazar, 173 Ariz. 399, 412, 844 P.2d 566, 579 (1992) (finding
gratuitous violence when a fragile, partially blind 83-year-old
woman was beaten and strangled so severely that she suffered a
broken nose and crushed Adam’s apple). We can infer that
Bocharski did not need to inflict twenty-four knife injuries,
including eight stab wounds that penetrated deep into Brown’s
face and head, to cause her death. Expert testimony established
that the fatal blow “probably” occurred before additional blows
were struck. Thus, the evidence supports the conclusion that
Bocharski inflicted more violence than that necessary to kill.
“knew or should have known that the victim would suffer.”
Tucker, 215 Ariz. at 310-11 ¶¶ 31-33, 160 P.3d at 189-90.
40
¶87 That conclusion alone, however, does not support a
finding of gratuitous violence. The state must also show that
the defendant continued to inflict violence after he knew or
should have known that a fatal action had occurred. See Medina,
193 Ariz. at 514 ¶ 36, 975 P.2d at 104 (finding gratuitous
violence and distinguishing State v. Richmond, 180 Ariz. 573,
886 P.2d 1329 (1994), because in Richmond “there was no showing
that the defendant knew or should have known the victim was dead
after the first pass of the car”); see also State v. Lee, 189
Ariz. 608, 619, 944 P.2d 1222, 1233 (1997) (finding gratuitous
violence when, after inflicting a wound to the head that was
“unquestionably fatal,” the defendant walked around the counter
and shot the victim two more times); State v. Jones, 185 Ariz.
471, 488-89, 917 P.2d 200, 217-18 (1996) (finding gratuitous
violence when the defendant, after inflicting two fatal blows,
asphyxiated the victim). A showing that a defendant continued
to inflict violence after he knew or should have known that a
fatal action had occurred provides essential evidence of the
defendant’s intent to inflict gratuitous violence.
¶88 The kinds of actions that this Court has previously
found sufficient to show the necessary intent to support a
finding of gratuitous violence are not present here. The medical
examiner testified that Brown’s heart was beating when each of
the wounds was inflicted, but speculated that the fatal wound
41
“probably” occurred early in the sequence of wounds because it
would have caused Brown to lose consciousness very quickly and
thus would explain both the absence of any struggle and why all
the injuries occurred in the same general area on one side of her
face. The doctor, however, expressed some uncertainty about when
in the sequence the fatal wound occurred. See State v. Lee, 189
Ariz. 590, 605, 944 P.2d 1204, 1219 (1997) (finding that the
evidence did not demonstrate violence beyond that necessary to
kill when the record did not establish the time between the four
gunshot wounds or the order in which the shots were fired); State
v. Lacy, 187 Ariz. 340, 354, 929 P.2d 1288, 1302 (1996) (finding
the record did not support a finding of gratuitous violence when
the “medical testimony did not establish which of the three shots
was fatal”). Such uncertainty about the timing of the fatal
wound makes it difficult to conclude beyond a reasonable doubt
that Bocharski knew or should have known that he had already
struck a fatal wound yet continued to attack the victim.
¶89 Second, the examiner testified that the knife injuries
occurred in quick succession and that all the injuries were
likely inflicted within a minute. Cf. State v. Sansing, 206
Ariz. 232, 238 ¶ 20, 77 P.3d 30, 36 (2003) (finding gratuitous
violence when the defendant killed the victim after a prolonged
attack in which he struck the victim in the head with a club,
dragged her into another room, raped her, and then stabbed her
42
several times); State v. Hinchey, 165 Ariz. 432, 439, 799 P.2d
352, 359 (1990) (finding gratuitous violence when after shooting
the victim twice in the face, the defendant later returned and
beat the victim over the head with a bottle and then went to the
kitchen and got a knife and stabbed the victim several times).
Such a sequence of events does not support the conclusion that
Bocharski continued to injure Brown even though he knew or should
have known that he had fatally wounded her.
¶90 Third, all the injuries in this case resulted from the
means used to inflict death. See State v. Schackart, 190 Ariz.
238, 249, 947 P.2d 315, 326 (1997) (finding evidence did not
support gratuitous violence when the medical examiner concluded
that the majority of the injuries were associated with the means
of killing); cf. Jones, 205 Ariz. at 450 ¶ 17, 72 P.3d at 1269
(finding gratuitous violence when the victim suffered nine blows
to the head, two stabbings in the throat, and multiple abrasions
on the chest and face); State v. Gulbrandson, 184 Ariz. 46, 68,
906 P.2d 579, 601 (1995) (finding gratuitous violence when the
defendant used several knives, scissors, and a wooden salad fork
to attack the victim); State v. Maturana, 180 Ariz. 126, 132, 882
P.2d 933, 939 (1994) (finding gratuitous violence when, after the
victim was shot twelve times, the defendants repeatedly hacked
the body with a machete). Because Bocharski used only a knife to
inflict the wounds and completed his attack very rapidly, we find
43
it unlikely he knew or should have known he had inflicted a fatal
wound but continued nonetheless to inflict more violence.
¶91 We cannot conclude from the evidence presented that
Bocharski intentionally inflicted violence after he knew or
should have known of a fatal occurrence; the State therefore did
not establish gratuitous violence beyond a reasonable doubt. 16
2.
¶92 The State presented sufficient evidence to prove the
F.9 aggravator beyond a reasonable doubt. Brown’s daughter
testified that her mother was eighty-four years old when she
died, and the State admitted a birth certificate and death
certificate indicating the same. Bocharski was thirty-three
years old at the time of the offense. Based on our independent
review, therefore, we conclude that the State established a
single aggravating factor.
B.
¶93 We turn next to the mitigating evidence. A capital
defendant may present any evidence during the penalty phase so
long as it is relevant and “supports a sentence less than death.”
Tucker, 215 Ariz. at 322 ¶ 106, 160 P.3d at 201. The defendant
16
While the facts in this case support a finding that the
victim was helpless and the murder was senseless, these factors
alone cannot support a finding of heinous or depraved. See State
v. Cañez, 202 Ariz. 133, 162 ¶ 109, 42 P.3d 564, 593 (2002)
(finding that helplessness and senselessness alone are not
enough).
44
must prove mitigating factors by a preponderance of the evidence.
A.R.S. § 13-703.C.
¶94 Bocharski presented one statutory and six non-statutory
mitigating circumstances: (1) A.R.S. § 13-703.G.1 (state of
mind), (2) physical, mental, and sexual abuse of the defendant,
(3) history of substance abuse and alcoholism, (4) dysfunctional
family of origin including multigenerational violence,
criminality, and substance, sexual, emotional, and physical
abuse, (5) abandonment, severe neglect, starvation, and foster
care placement, (6) impact of execution on the defendant’s
family, and (7) remorse.
1.
¶95 Section 13-703.G.1 instructs that we consider whether
Bocharski’s “capacity to appreciate the wrongfulness of his
conduct or to conform his conduct to the requirements of law was
significantly impaired, but not so impaired as to constitute a
defense to prosecution.” Dr. Craig Beaver interviewed Bocharski
and reviewed relevant records, including those gathered by the
mitigation specialist. Dr. Beaver opined that Bocharski was
severely abused emotionally, physically, and sexually as a child
and that he never had an opportunity for normal growth and
development. He also stated that the forcible rapes and beatings
by Chuck Below, with whom Bocharski lived during his teenage
years, caused significant emotional trauma, particularly because
45
Below was one of the only adults who had ever provided for
Bocharski. Moreover, he explained, Bocharski was “given no
resources to cope and deal effectively with the severity of abuse
and neglect that he suffered throughout his upbringing.” Dr.
Beaver testified that Bocharski suffered from many of the
elements of post-traumatic stress disorder, caused not only by
his early childhood experiences, but particularly by his
relationship with Below.
¶96 Next, Dr. Beaver discussed the multigenerational
history of severe alcohol abuse in the Bocharski family;
Bocharski’s parents were severe alcoholics, as were his
grandparents. Bocharski was exposed to alcohol at a very young
age and drank alcohol regularly by the time he was in his late
teens. Bocharski married in his early twenties and had three
children, but his abuse of alcohol eventually ended the
relationship. Dr. Beaver opined that Bocharski’s mental state
continued to deteriorate over time, “given his lack of
psychological resources, 17 appropriate psychosocial supports, 18
and his worsening alcoholism,” and that “when [Bocharski] moved
17
Dr. Beaver testified that psychological resources refers to
those normal resources a person has within himself to cope and
that Bocharski lacked such resources due to his background and
upbringing.
18
Psychosocial supports refers to those one has in his
community to support him and give direction.
46
to Arizona in 1994, he was at the end of his tether.” Dr. Beaver
also testified that, in his opinion, Bocharski was “pretty
depressed” at the time of the offense.
¶97 Dr. Beaver stated that a person like Bocharski, in a
depressed and inebriated state, 19 would have been much more
limited than most people in his ability to control and manage his
feelings and reactions. In correspondence admitted into
evidence, Dr. Beaver stated, “[T]here is evidence to suggest that
Phillip Bocharski’s emotional and alcoholic condition around the
time of Freeda Brown’s murder affected not only his interactions
with the investigating police, but likely played a substantial
role in the events that led to his arrest for the murder of
Freeda Brown.” The doctor also noted that Bocharski was
concerned with the way Brown treated her animals and that, during
his childhood, Bocharski experienced a traumatic event when an
uncle killed his pet hamsters. Finally, the doctor testified
that people suffering from post-traumatic stress disorder tend to
lack the ability to control their impulses in very emotional or
highly charged situations and that alcohol significantly adds to
this limitation.
19
Several witnesses corroborated Bocharski’s testimony that he
was very intoxicated on the day of the murder. Towell testified
that he and Bocharski drank beer at his campsite on the day of
the murder. Sukis verified that he and Bocharski stopped at the
Arrowhead Bar on the night of the murder and that Bocharski
ordered bourbon and coke and then a pint of whiskey.
47
¶98 Although Dr. Beaver’s testimony suggests that
Bocharski’s ability to conform his conduct to the requirements of
law was impaired, his testimony does not support a conclusion
that Bocharski was significantly impaired as required by A.R.S. §
13-703.G.1.
¶99 Furthermore, although voluntary intoxication or
substance abuse can be a mitigating factor that supports a G.1
finding, “a defendant’s claim of alcohol or drug impairment fails
when there is evidence that the defendant took steps to avoid
prosecution shortly after the murder, or when it appears that
intoxication did not overwhelm the defendant’s ability to control
his physical behavior.” State v. Rienhardt, 190 Ariz. 579, 591-
92, 951 P.2d 454, 466-67 (1997). Bocharski testified that after
he stabbed Brown he wanted to cover up the crime so he considered
burning the trailer and then stole money from Brown’s purse to
make it look like a robbery. Bocharski also locked the door of
the trailer before leaving. The next morning, he lied about the
source of the money.
¶100 We conclude that Bocharski did not prove this statutory
mitigating factor by a preponderance of the evidence.
Nonetheless, we will consider Bocharski’s abuse, neglect, and
intoxication as non-statutory mitigating circumstances.
2.
48
¶101 Testimony from numerous witnesses supports the
conclusion that Bocharski suffered severe physical, mental, and
sexual abuse during his childhood. Bocharski’s sister, Carol
Ann, testified that Bocharski’s mother, Mary Rose, beat him
frequently: “She’d cuff him in the head, used boards on him, she
used electric cords, she used hot wheel race tracks. Belts,
mirrors, brushes.” She also testified that Bocharski’s uncle,
who lived with them for a time, beat Bocharski frequently and was
“always picking on Phillip and smacking him around.” Also,
around the age of twelve, Bocharski’s family moved in with his
mother’s cousin. According to Mary Rose, her cousin, a convicted
child molester, later admitted that he had sexually molested
Bocharski.
¶102 When Bocharski was a young teenager, his mother sent
him to live with Chuck Below and, according to some accounts,
accepted money from Below in return for her son. Bocharski lived
and traveled with Below, a long-distance trucker. The mitigation
specialist interviewed Below in prison, where he was serving a
fifty-year sentence for multiple child molestation convictions.
During the interview, Below admitted that he beat Bocharski often
and forcibly raped him for several years. The evidence
established that Bocharski suffered extreme physical, mental, and
sexual abuse by a preponderance of the evidence.
3.
49
¶103 Bocharski stated that he began drinking alcohol around
the age of ten and that his drinking increased until he drank
regularly on the weekends by age sixteen. Bocharski’s wife
described him as a serious alcoholic “who drinks until he blacks
out.” Further, several of Bocharski’s acquaintances testified
that, around the time of Brown’s murder, Bocharski was consuming
“a lot of alcohol.” As detailed above, Bocharski apparently
consumed a significant amount of alcohol on the day he murdered
Brown. Thus, a preponderance of the evidence supports the
conclusion that Bocharski had a history of alcohol abuse and was
intoxicated at the time of the crime.
4.
¶104 As Dr. Beaver testified, Bocharski came from a severely
dysfunctional family. The record includes evidence of
multigenerational violence in both his mother’s and father’s
families. Bocharski’s father engaged in several significant
incidents of violence, including one in which he threatened to
shoot his own mother and another in which he kidnapped and held
two state troopers at gunpoint. Bocharski’s mother testified
that her parents beat her and that she was molested by her
brothers when she was young, resulting in a pregnancy and
attempted suicide. The multigenerational history also includes
severe alcohol abuse; Bocharski’s parents were both alcoholics,
50
as were their parents. By a preponderance of the evidence,
Bocharski proved a severely dysfunctional family of origin.
5.
¶105 Bocharski also presented extensive evidence of
abandonment and neglect. Bocharski’s father left shortly after
his birth and denies that Bocharski is his son. Several
witnesses testified that Bocharski’s mother frequently inflicted
violence on her children and was extraordinarily neglectful.
Bocharski’s sister testified that their mother left them alone
for days without food and constantly brought new sexual partners
into the home. A neighbor reported seeing Bocharski and his
sister rummaging through garbage cans looking for food during the
winter in New York. For a time, the children lived with a
motorcycle group in New York, where Bocharski and his sister were
exposed to drugs, sex, and filthy living conditions. A
Children’s Services Division caseworker in New York filed a
petition charging Bocharski’s mother with “neglect of her
children in that she had failed to provide food, education, and
medical care, although financially able to do so.” This petition
resulted in the placement of Bocharski and his sister in foster
care for the second time. Considering whether to return the
children to their mother, the caseworker stated:
[T]hese children were the most seriously neglected
children I have placed in a long time. I still have
some pangs of conscience for letting these children
51
suffer the emotional stress of much drinking, fighting,
poor supervision, and open immoral conduct for as long
as I did before I acted.
Besides this these children were really hungry,
and it was an amazement to them when they were first
placed with the [foster family] that they could have
all they wanted to eat at night and still have enough
left for morning.
Bocharski lived in foster care for approximately two years and
then returned to his mother’s care. After a few years, she sent
him to live with Below, who physically and sexually abused him.
Bocharski proved this mitigating factor by a preponderance of the
evidence.
6.
¶106 “The existence of family ties is a mitigating factor.”
McGill, 213 Ariz. at 162 ¶ 67, 140 P.3d at 945. Carol Ann,
Bocharski’s sister who lost contact with him after he moved in
with Below, testified that she wants “[m]ore than anything” to
develop a relationship with her brother and is corresponding with
him. Also, letters written by each of Bocharski’s children were
submitted into evidence; they express love for their father.
“The love of a defendant’s family is mitigating evidence,”
Ellison, 213 Ariz. at 145 ¶ 142, 140 P.3d at 928, and Bocharski
established this factor.
7.
52
¶107 Bocharski also established his remorse, which can serve
as a mitigating factor. Medina, 193 Ariz. at 516 ¶ 52, 975 P.2d
at 106. He made the following statement at the penalty phase:
I would like to say to Freeda Brown’s family that I am
sorry for the pain that I have caused your family by
taking the life of someone you love so dearly. If I
could change one night of my life, it would be the
night that I took Freeda’s life. If I could give up my
life so Freeda could live again, I would gladly do
that. She didn’t deserve to die and I truly am sorry
for the pain and the grief I have caused your family.
Mary Durand, the mitigation specialist, testified that Bocharski
expressed remorse for murdering Brown and attempted to write a
letter to Brown’s closest friends.
C.
¶108 As described above, the trial judge concluded that
Bocharski presented evidence of a peaceful character and allowed
the State to rebut this evidence with the Fields stipulation and
judgment of conviction. The State read the Fields stipulation
into evidence and informed the jury that Bocharski had been
convicted of aggravated assault, a class-three felony, with a
dangerous instrument, and kidnapping, a class-two felony,
dangerous, pursuant to A.R.S. § 13-604, as a result of the Fields
incident. Both exhibits were admitted into evidence.
D.
¶109 Many criminal defendants present mitigation evidence of
a less-than-ideal life, but Bocharski’s mitigation evidence is
53
unique in its depth and breadth. The evidence in the record
demonstrates severe neglect, as well as almost unimaginable
mental, physical, sexual, and emotional abuse throughout his
childhood. The record also reveals Bocharski’s history of
alcohol abuse and intoxication at the time of the crime.
Finally, he established the impact of execution on his family and
his remorse.
¶110 Although a “difficult family background, in and of
itself, is not a mitigating circumstance sufficient to mandate
leniency in every capital case,” we can consider both the degree
to which a defendant suffered as a child and the strength of a
causal connection between the mitigating factors and the crime
“in assessing the quality and strength of the mitigation
evidence.” Hampton, 213 Ariz. at 185 ¶ 89, 140 P.3d at 968
(citation and internal quotation omitted). Here, we have
evidence of a causal connection. Dr. Beaver testified that
Bocharski’s troubled upbringing helped cause the murder of Brown:
He testified that Bocharski’s emotional and alcoholic state
likely played a substantial role in the events that led to the
murder of Brown and that a person in his state would have been
far less able than others to control and manage his feelings and
reactions.
¶111 Several factors cause us to give somewhat less weight
to some of the mitigation evidence presented. First, Bocharski’s
54
actions immediately following the crime constituted purposeful
steps to avoid prosecution and therefore his claim of alcohol
impairment is diminished. See Rienhardt, 190 Ariz. at 591-92,
951 P.2d at 466-67. Also, Bocharski committed this offense when
he was thirty-three years old, lessening the relevance of abuse
and neglect that occurred during his childhood. See Hampton, 213
Ariz. at 185 ¶ 89, 140 P.3d at 968; Anderson, 210 Ariz. at 357 ¶
136, 111 P.3d at 399.
E.
¶112 To determine whether the mitigation evidence is
sufficiently substantial to call for leniency, we evaluate the
strength of both aggravating and mitigating factors. The
aggravation, absent the F.6 aggravator, is not particularly
strong. The State established only the F.9 aggravator, age of
the victim, beyond a reasonable doubt. The mitigation evidence,
in contrast, is substantial. Given the limited aggravation
evidence and the strong mitigation evidence, we doubt whether
death is warranted in this case. “When there is a doubt whether
the death sentence should be imposed, we will resolve that doubt
in favor of a life sentence.” Roque, 213 Ariz. at 231 ¶ 170, 141
55
P.3d at 406 (citation and internal quotation omitted). We do so
here. 20
IV.
¶113 We reduce defendant’s sentence of death to natural life
imprisonment without the possibility of release. 21 See A.R.S. §§
13-703.A, -703.04.B.
_______________________________________
Ruth V. McGregor, Chief Justice
CONCURRING:
_______________________________________
Rebecca White Berch, Vice Chief Justice
_______________________________________
Michael D. Ryan, Justice
_______________________________________
Andrew D. Hurwitz, Justice
_______________________________________
W. Scott Bales, Justice
20
Bocharski raised nineteen additional issues to avoid
preclusion. Because we vacate Bocharski’s death sentence, these
issues are moot.
21
Bocharski also raised a number of additional issues on
appeal, which we do not address because they are no longer
relevant in light of the Court’s conclusion in this case.
56