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<I>Bocharski resentencing</I><BR>Judge: State can use jail incident details only as rebuttal

PRESCOTT – The state will be able to use information surrounding a jail incident from nine years ago only as a rebuttal to prove Philip Bocharski's propensity to violence during the penalty phase of his trial, a trial court ruled on Monday.

A jury convicted Bocharski of felony murder in September 1996. 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 sentenced Bocharski to death after the defendant waived his right to a mitigation hearing.

While on death row, his attorneys appealed and the Arizona Supreme Court concluded that the defense team 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.

Kiger agreed Monday that the state should be able to present evidence that shows Bocharski in a different light if defense witnesses testify positively about his character.

In order to prove Bocharski's propensity to violence the state plans to use a January 1996 incident at the Yavapai County Jail during which a number of inmates including Bocharski assaulted inmate Donald Edward Fields. The assault lasted for a period of six hours during which Fields suffered significant but non-life-threatening injuries, according to a Yavapai County Sheriff's Office report.

Bocharski's attorney, Thomas Kelly, argued previously that the defense doesn't plan to use Bocharski's conduct while in prison as mitigating circumstances and therefore the state can't bring up his client's propensity for violence either.

On Monday, Kelly said the jail incident happened when Bocharski was an adult and not as a child.

Deputy Yavapai County Attorney Joe Butner said if any of defense witnesses testify that "Bocharski was a nice and gentle guy" the state should then present the evidence in the Fields case. He said even testimony about him being a gentle and kind child is sufficient to present information that indicates "no he is not and here is why."

Kiger concluded that both sides should prepare for the testimony in the Fields case.

But this new development may again delay the trial date, which the court plans to schedule for early December of this year.

Kelly said that to prepare for that testimony he and his defense partner, Ray Hanna, have to interview at least between 40 to 50 witnesses in order to find which ones would testify in favor of their client. He said that January 2006 seems a more realistic target date for the trial.

Kiger suggested that the defense may need to hire a person they trust to help them in this effort.

Butner said that he didn't object to constant continuances, but at this point he feels the court should set the trial date in early December.

"I want to get a trial date and I want it this year if possible," he said.

He said without the Fields case, he anticipated the trial to start in the late summer.

Kiger set another status conference for 4 p.m. on March 28 when he may set a trial date.

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