State v. Bocharski

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