State v. Bocharski

ZLAKET, Chief Justice.

Defendant Phillip Alan Bocharski moved from Michigan to Arizona with Frank Sukis in November 1994. The two settled just outside the small town of Congress. The defendant initially stayed with Sukis, but in December moved to a well-populated campsite on Ghost Town Road. Around Christmas, Sukis gave the defendant a Kabar knife, slightly smaller than one he kept for himself. This knife was described by Bocharski as his “pride and joy,” and he was frequently seen with it.

In April 1995, Sukis moved to a location near the defendant. Shortly thereafter, an eighty-four year old woman named Freeda Brown established a campsite between Bocharski and Sukis. . . .

Sukis lived on a disability pension from the federal government. Bocharski, on the other hand, seldom had money. Once in a while, he did odd jobs or yard work for folks in the area, but he also did a lot of “free-loadin',” as Sukis put it. At Sukis' suggestion, Brown hired Bocharski to drive her around and do errands because she had poor eyesight and arthritis. Witnesses later testified that the defendant often helped Brown, and the two of them appeared to have a good relationship.

On May 10, Sukis picked up Bocharski at the latter's tent. The two of them saw Brown polishing her truck, but did not stop to speak with her. Bocharski and Sukis then drove to the local food bank and obtained three boxes of food. One box was for their friends, Richard Towell and Mary Beth Anglin, who lived in a remote campsite and had no transportation. Sukis later testified that while on their way to the Towell/Anglin campsite, the defendant suggested “maybe he should offer [sic] or get rid of [Brown], on account of her arthritis, ‘cause she was complaining all the time, she was praying God he'd take her out of her misery.”

[ . . . ]

On May 13, Duane Staley noticed that Freeda Brown's dog had no water and its leash was wrapped around a tree. He had not seen Brown in a while and grew concerned. He knocked on her trailer door and tried to open it. He then obtained help from Sukis, who got inside and found Brown's body on the bed, covered by a blanket. Staley went to call the Sheriff's Department while Sukis stayed at the location.

The officer who arrived at the trailer observed that the woman's body had already begun to decompose. He concluded that her death was due to natural causes. He assumed that Brown's appearance-her head was covered in blood and other matter-was due to cats having nibbled at her face. There were no signs of a struggle. He therefore made no attempt to preserve the scene and had a mortuary pick up the body. . . .

. . . Meanwhile, the medical examiner told police that she suspected Brown's death was not the result of natural causes. A subsequent autopsy disclosed that Brown had perished as a result of at least sixteen stab wounds to the head.

[ . . . ]

On May 16, the police examined Brown's trailer and belongings. Blood found in the trailer was tested and determined to be Brown's. That same day, the sheriff executed a SWAT team raid on the Towell/Anglin campsite. An officer asked Towell whether Bocharski had ever mentioned anything about an old lady in Congress. Towell registered surprise, and immediately replied that the defendant had said he “killed that old lady for five hundred dollars.”

Towell also told the police that Bocharski was wearing khaki shorts and tennis shoes on May 10, and jeans and boots on May 11. The police never found the shorts or tennis shoes, but in searching Bocharski's campsite they discovered a Levis button and three eyelets in the campfire. Based on statements made by Sukis and Towell, officers searched around a mine and a nearby cemetery in hopes of finding Bocharski's Kabar knife, which was last seen by any witness three months before the killing. The knife was never located. In fact, no murder weapon was ever found. Subsequent tests showed that blood found on the defendant's belongings was his own. Two of his fingerprints were found on the door of the deceased's trailer, but could not be dated.

The defendant did not testify at his trial. He was convicted of first degree felony murder and first degree burglary. The jury also found that the state's allegation of a prior felony conviction was true. Bocharski was sentenced to twenty-one years imprisonment on the burglary charge, and to death for the murder. We review this case on direct, automatic appeal pursuant to Ariz. Const. art. VI, § 5(3), Ariz.Rev.Stat. § 13-4031, and Ariz. R.Crim. P. 31.2(b).


TRIAL ISSUES


A. GRUESOME PHOTOGRAPHS

The trial court allowed six photographs into evidence over defense counsel's objection that they were gruesome, highly inflammatory, and unduly prejudicial:

Exhibit 42: the victim's clothed body, showing gross marbling of the skin, discoloration of the face, and fluid coming from both the nose and mouth;

Exhibit 43: a closeup of the victim's face in profile before it was cleaned

Exhibit 44: the victim's torso and face after the body had been washed and her head had been shaved to make the wounds more visible;

Exhibit 45: a closeup of the victim's hand and finger; and

Exhibits 46, 47: views of the victim's skull, the top and its contents having been removed, with a metal rod going through an opening to the inside.

Relevant photographs may be received in evidence even though they “also have a tendency to prejudice the jury against the person who committed the offense.” . . . This does not mean, however, that every relevant photograph should automatically be admitted. If a photograph “is of a nature to incite passion or inflame the jury,” id., the court must determine whether the danger of unfair prejudice substantially outweighs the exhibit's probative value. . . . A trial court's decision in this regard will generally not be disturbed unless we find a clear abuse of discretion. . . .

Bocharski concedes that the photographs of the victim's body were relevant. We agree. Rule 401 declares that evidence which has “ any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence” is relevant. . . . We have previously recognized that the state has the burden of proving every element of first degree murder. . . . We have also suggested that photographs of a homicide victim's body are generally admissible because “the fact and cause of death are always relevant in a murder case.” . . .

However, if a defendant does not contest the “fact that is of consequence,” . . . , then a relevant exhibit's probative value may be minimal. Under such circumstances, gruesome photographs may “have little use or purpose except to inflame,” . . . , and their prejudicial effect can be significant. In the present case, the photographs introduced by the state went to largely uncontested issues. The defense did not challenge the fact of the victim's death, the extent of her injuries, or the manner of her demise.

Exhibits 42 and 43 depict both the state of the body's decomposition and facial wounds. There was some question about how long the victim had been dead before she was found. This was discussed by the medical examiner and a forensic pathologist who performed the autopsy. The witnesses could not ascertain an exact time of death, only coming within a few days in their estimates. Moreover, while diagrams were available to depict the size and location of the deceased's most profound injuries, the state introduced exhibit 44 to show superficial head wounds, and exhibit 45 to show a cut on the victim's finger. Testimony indicated that the latter was not a defensive wound, making its significance marginal at best.

Nevertheless, we do not conclude that the trial court abused its discretion by admitting Exhibits 42-45. The state “cannot be compelled to try its case in a sterile setting.” . . . We are, however, concerned about the admission of Exhibits 46 and 47. Their admission was unnecessary and quite risky. The state contends that these photos were required to show the angles and depths of the penetrating wounds. According to the state, this information was important because a juror asked the medical examiner about it. The defense argues that the photographs had no probative value; the manner of the victim's death was not in issue and the photographs failed to show that the defendant's missing knife caused the wounds.

The trial judge originally allowed exhibits 46 and 47 to be admitted for the purpose of showing the angles of the wounds. However, the prosecutor did not elicit testimony concerning these angles or their significance. Indeed, there was no testimony at trial rendering exhibits 46 and 47 particularly meaningful. The photographs do not reveal what type of knife was used, nor did the prosecutor refer to them when examining witnesses regarding a possible murder weapon. Although the pictures met the bare minimum standard of relevance-what we referred to as “mere technical relevance” in Chapple, 135 Ariz. at 288, 660 P.2d at 1216-they had little tendency to establish any disputed issue in the case. Accordingly, we are left to conclude that they were introduced primarily to inflame the jury. . . .

Let us again make clear that not every relevant photograph is admissible. Trial courts have broad discretion in admitting photographs. . . . However, judges also have an obligation to weigh the prejudice caused by a gruesome picture against its probative value. . . . In the present case, the record reflects that the trial judge conducted a Rule 403 weighing. In our view, however, he reached the wrong conclusion with regard to Exhibits 46 and 47. These two photos should not have been admitted.

This, however, does not end our inquiry. We still must determine whether “we can say beyond a reasonable doubt, that the error did not contribute to or affect the jury's verdict.” . . . Our focus is “not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.” . . .

Here, the photographs of the corpse were startling, as evidenced by the jurors' visible reactions to them. In particular, two jurors showed physical signs of distress upon seeing Exhibits 42, 43, and 44, with one of them apparently trying to prevent herself from hyperventilating. The judge noted on the record that after seeing these reactions to the first group of photographs, he “watched [the jurors] closely as they passed around Forty-six and Forty-seven.” His observation that “they seemed to take them in stride” is uncontroverted. Bocharski has not shown that Exhibits 46 and 47 had a particularly adverse effect on this jury.

It is true, as the defense asserts, that the only physical evidence tying Bocharski to the crime scene were two fingerprints that could not be dated. As the defendant notes, these were not particularly significant, given his relationship with the victim. In addition, despite a thorough search, the police never recovered the murder weapon. Although the prosecutor argued that Bocharski's missing knife could have inflicted the victim's wounds and that the defendant likely disposed of the weapon, no connection was conclusively established. Thus, the defendant claims that the state's case was terribly weak, making the photographs especially damaging. But this argument overlooks Bocharski's highly inculpatory statements, and the far-fetched explanations he gave for the money in his possession.

[ . . . ]

The state asserted that the defendant killed the victim, stole her money, disposed of the murder weapon, went to the library, hid the money underneath the propane tank, returned home, and burned his clothes beyond recognition except for a Levis button and three eyelets. Thus, aided by an incomplete police investigation, Bocharski was able to eliminate every physical trace of his involvement in this crime.

The state's theory was certainly supported by damaging admissions made by the defendant to Sukis, Towell, Stanberry, and a fellow inmate at the Yavapai County jail, Donald Fields. The defense counters that these witnesses were vulnerable to attack by virtue of their inconsistent statements, questionable backgrounds, and personal habits. Substance abuse and mental illness were significant features of their individual histories. But the jury was able to evaluate these weaknesses, all of which were exposed at trial.

The state's proof, though not ironclad, was more than sufficient to support the defendant's conviction. Nothing before us suggests that the jurors' thoughtful consideration of the evidence was hampered by the objectionable photographs. Their verdict reflects careful attention to detail. Indeed, they chose felony murder instead of premeditated murder-a distinction that might easily have been overlooked if the verdict had been attributable to outrage or emotion generated by the gruesome pictures. . . . Accordingly, we find beyond a reasonable doubt that the error in admitting Exhibits 46 and 47 did not contribute to or affect the jury's verdict.


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DISPOSITION

We affirm the defendant's convictions. We set aside his sentences and remand for proceedings not inconsistent with this opinion. The defendant has raised additional claims of error, all related to sentencing, “in order to avoid future claims of procedural default and to preserve [them] for further review.” We need not address them in view of our decision to remand for resentencing.

CONCURRING: CHARLES E. JONES, Vice Chief Justice, STANLEY G. FELDMAN, Justice.

MARTONE, Justice, concurring in the judgment.

I join the court in affirming the convictions and remanding for a new sentencing hearing. I write separately to express my disapproval of parts of the opinion.


I. Photographs

Bocharski conceded the relevance of all the admitted photographs. . . . The question then is simply whether the trial court abused its discretion in weighing probative value against prejudicial effect under Rule 403, Ariz. R. Evid. As evidenced by the majority's sua sponte speculation here, appellate courts are not in a very good position to second guess such judgments. There has been no showing in this case that the trial court abused its discretion in admitting these photographs. Bocharski points to no particular photograph and no particular conduct by the trial court. Murder is a grisly business and is likely to involve grisly photographs. Absent egregious error, we should not disturb Rule 403 weighing by the trial judge. . . . There was no appeal to emotion, sympathy, or horror here. . . .

One's view on the exclusion of otherwise relevant evidence is influenced by one's view of the jury system. I do not believe that jurors need to be protected from themselves. In my experience, jurors quite properly separate the wheat from the chaff. Indeed, the majority went so far in Logerquist v. McVey, 196 Ariz. 470, 1 P.3d 113 (2000), to allow jurors to make threshold questions about the validity of scientific assertions. While I do not go that far, see id. at 493, 1 P.3d at 136 (Martone, J., dissenting), I do not believe that we should be paternalistic with our jurors. The trial court did not err in admitting any of the photographs.

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McGREGOR, specially concurring.

I join the majority opinion, with the exception of the majority's conclusion that the trial judge erred in admitting into evidence Exhibits 46 and 47. . . .On that question, I agree with Justice Martone's conclusion that the trial judge did not abuse his discretion in admitting the challenged photographs. . . .