189 P.3d 403 (Ariz. 2008), CR-06-0295, State v. Bocharski

Docket Nº:CR-06-0295-AP.
Citation:189 P.3d 403, 218 Ariz. 476
Opinion Judge:McGREGOR, Chief Justice.
Party Name:STATE of Arizona, Appellee, v. Phillip Alan BOCHARSKI, Appellant.
Attorney:Terry Goddard, Arizona Attorney General by Kent E. Cattani, Chief Counsel, Capital Litigation Section, Deborah A. Bigbee, Assistant Attorney General, Phoenix, Attorneys for State of Arizona., David Goldberg, Attorney at Law by David Goldberg, Flagstaff, Attorney for Phillip Alan Bocharski.
Case Date:August 08, 2008
Court:Supreme Court of Arizona

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189 P.3d 403 (Ariz. 2008)

218 Ariz. 476

STATE of Arizona, Appellee,


Phillip Alan BOCHARSKI, Appellant.

No. CR-06-0295-AP.

Supreme Court of Arizona, En Banc.

August 8, 2008

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Terry Goddard, Arizona Attorney General by Kent E. Cattani, Chief Counsel, Capital Litigation Section, Deborah A. Bigbee, Assistant Attorney General, Phoenix, Attorneys for State of Arizona.

David Goldberg, Attorney at Law by David Goldberg, Flagstaff, Attorney for Phillip Alan Bocharski.


McGREGOR, 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.


¶ 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 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.

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¶ 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, 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 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.



¶ 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, 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

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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 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).


¶ 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 sentence him to death. See Caldwell v. Mississippi, 472 U.S. 320, 328-29, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985) (finding that a...

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