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Tue, Nov. 12

Judge mulling murder convict's 'future dangerousness'

PRESCOTT – A judge will have to decide whether the state can present to the jury "future dangerousness" as an aggravating element during the penalty phase in Philip Bocharski's case.

During an oral argument on Wednesday, Deputy Yavapai County Attorney Dennis McGrane argued that the statute allows the state to present the "future dangerousness" element during the penalty phase of this capital case rather than as a part of the evidence presented during the aggravating phase.

During the aggravating phase of the trial, a jury has to find one or more aggravating factors that the statute specifically defines, which would help it to decide during the penalty phase whether Bocharski deserves to die for the crime he committed in 1995.

A jury convicted Bocharski of murder in September 1996. According to the court records, in May 1995 Bocharski stabbed 84-year-old Freeda Brown of Congress in the head at least 16 times and stole $500 from her.

Yavapai County Superior Court Judge William Kiger subsequently sentenced him to death after the defendant waived his right to a mitigation hearing.

While on death row, his attorneys, Thomas Kelly and Ray Hanna, filed an appeal, which reached the Arizona Supreme Court. In May 2001, the highest court in the state concluded that his attorneys did not have enough money to conduct a thorough investigation to collect mitigating evidence (evidence that favors their client) and remanded it to the trial court for re-sentencing.

Kelly argued on Wednesday that the state should not be allowed to present the new element during the penalty phase. He claimed that the state could present only rebuttal evidence in response to the mitigating evidence that the defense puts on during that stage of the trial.

Since the defense doesn't plan to use Bocharski's conduct while in prison as a mitigating circumstance, the state can't bring up his propensity for violence either, Kelly argued.

In addition, he said, since "future dangerousness" is not one of the aggravating factors that the statute defines, the state has no legal authority to use it even during the aggravating phase of the trial.

That new factor that the state is alleging stems from a January 1996 incident at the Yavapai County Jail that involved victim Donald Edward Fields, an inmate.

Yavapai County Sheriff's Office Capt. Ron Klein, who was in charge of the jail at that time, said previously that Bocharski was one of the inmates who was involved in the incident. He said that Fields helped the Prescott Police Department to apprehend Christopher Albert Moore during an armed robbery incident at a local grocery store.

Later, the PPD arrested Fields for driving on a suspended driver's license. Not knowing that had had a previous encounter with Moore, the jail staff booked him into the same dorm with Moore.

At one point, Moore and a number of other inmates, including Bocharski, assaulted the victim for a period of six hours by hitting, kicking, and smacking him with their hands, legs and wet towels, according to a YCSO report.

Although Fields suffered significant injuries that included bruises, lacerations, cracked ribs and ruptured eardrums, they were not life-threatening injuries, the report said.

Kelly said previously that initially the state planned to present three alleged aggravating factors, including the age of the victim at the time of the incident, that Bocharski killed the victim for monetary gain, and that he committed the crime in an especially heinous and depraved manner.

McGrane argued on Wednesday that if the state proves to the jury that aggravating factors exist beyond a reasonable doubt, then during the penalty phase of the trial the state should be allowed to present evidence that requires a lower burden of proof.

Hanna then asked whether this means that the state should be allowed to use pictures that the court had excluded during the guilty phase of the trial as evidence during the penalty phase.

Judge Kiger concluded that he will have to take the motion under advisement and allow both sides to file supplemental briefings focusing on potential case law that supports either position.

He scheduled the next hearing for 4 p.m. on Feb. 28.

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