Boziel v. State

864 P.2d 553, 1993 Alas. App. LEXIS 55, 1993 WL 511776
CourtCourt of Appeals of Alaska
DecidedDecember 10, 1993
DocketNo. A-4730
StatusPublished
Cited by2 cases

This text of 864 P.2d 553 (Boziel v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Alaska primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Boziel v. State, 864 P.2d 553, 1993 Alas. App. LEXIS 55, 1993 WL 511776 (Ala. Ct. App. 1993).

Opinion

OPINION

BRYNER, Chief Judge.

Shay J. Boziel was charged with murder in the first degree and eventually entered into an agreement with the state to plead no contest to the lesser offense of murder in the second degree. The agreement called for Boziel to receive a sentence of no more than thirty years. Superior Court Judge John Reese accepted the terms of the negotiated disposition and sentenced Boziel to thirty years. Boziel appeals, contending that his sentence is excessive. We affirm.

THE OFFENSE

In the early morning hours of April 22, 1990, Boziel and a companion, Edward G. Vogler, were drinking, socializing, and driving around Anchorage. Boziel was carrying a .22 caliber handgun he had obtained from a girlfriend. Earlier that night, while speaking with his girlfriend, Boziel had asked how she felt about shooting someone.

As the two men drove, they spotted a female pedestrian, a stranger. Vogler stopped the car. Boziel offered the pedestrian, D.M., a ride. She accepted. As D.M. approached the car, Boziel told Vogler he intended to shoot her. Within minutes, Bo-ziel fired three shots into D.M.’s chest at point blank range, without warning or provocation. After the shooting, Boziel and Vogler left D.M.’s body in an alley garbage crib. Vogler partially disrobed D.M.’s body to make the homicide look like it had been sexually motivated.

A short time after Boziel and Vogler abandoned D.M.’s body, a police officer attempted to stop their car for an equipment violation. Vogler led the officer on a high speed chase but was eventually stopped. The police arrested him for driving while intoxicated. They arrested Boziel on outstanding traffic warrants.

Within several hours, while both men remained in custody, D.M.’s body was discovered, and the police were summoned. Fortuitously, the officer who had earlier stopped Boziel and Vogler responded to the call and connected the two men to the killing. The police questioned Vogler; he told them that Boziel actually fired the shots. Physical evidence tended to corroborate his story. Vogler negotiated an agreement to plead no contest to manslaughter in return for his testimony against Boziel. Because of uncertainty as to whether a jury would accept Vogler’s testimony against Boziel, the state agreed to allow Boziel to plead no contest to second-degree murder; the agreement included the thirty-year sentencing cap.

THE OFFENDER

Boziel was nineteen years old when he committed the murder. He had recently received a general discharge from the Army for unsatisfactory performance. Bo-ziel spent his early life in California, where he grew up in a troubled and unstable family environment. Boziel was introduced to alcohol and other drugs at an early age; [555]*555by the time of this offense, he had developed a serious alcohol and drug abuse problem.

Between the ages of twelve and sixteen, Boziel accumulated a significant record of delinquent behavior in California, which culminated in his adjudication in 1986 for conduct amounting to felony theft. Most of Boziel’s juvenile misconduct involved property offenses; his 1986 felony adjudication involved theft of a firearm. In addition, at fourteen years of age he had been accused of sexually molesting a child; the charge had resulted in a deferred prosecution agreement.

Boziel’s delinquency subsided abruptly in the latter part of 1986, when he and his foster parents moved from California to Kentucky. By all accounts, Boziel’s behavior improved dramatically; his academic performance stabilized, he pursued a course of vocational training with outstanding results, and he successfully completed his juvenile probation.

Boziel’s improved behavior lasted until he enlisted in the Army after his eighteenth birthday. The improvement appears to have resulted from his placement in a stable and nurturing family setting. Upon joining the Army, however, Boziel again experienced significant problems. His discharge from the Army, which occurred only slightly more than a year after enlistment, resulted from a consistent pattern of insubordination and noncompliant behavior.

Boziel’s current offense occurred approximately a month after he left the Army. After being charged with murder, Boziel was placed in the Cook Inlet Pretrial Facility; he resided there until his sentencing hearing, two and one-half years later. Bo-ziel’s institutional record at Cook Inlet was poor: he spent approximately half of his pre-sentence incarceration in punitive detention for recurring infractions involving failed or refused drug screens and possession of unauthorized articles.

Prior to sentencing, Boziel submitted to a psychological evaluation by Dr. James F. Harper. Harper found that Boziel suffered from polysubstance abuse and chronic depression. In addition, he found that Boziel met the diagnostic criteria for antisocial personality disorder. Harper noted several traits — including a capacity for empathy — indicating that Boziel was not “entirely sociopathic” in his “total personality structure.” These traits caused Harper to question whether Boziel’s conduct could properly be characterized as a “thrill killing.” Harper nevertheless found the diagnosis of antisocial personality disorder generally appropriate, stating:

Mr. Boziel does have poor behavioral controls, is impulsive, lacks long-term goals, is unstable in his unemployment, abuses drugs, and has a history of juvenile delinquency. He has clearly not been able to manage his feelings [or] his behavior adequately since incarceration.

THE SENTENCING HEARING

At his sentencing hearing, Boziel argued that as a youthful first offender who had shown himself capable of exemplary conduct when placed in a stable environment, he deserved a sentence recognizing his prospects for rehabilitation — a sentence that included a substantial amount of suspended time. Boziel urged Judge Reese to impose a term of thirty years with ten years suspended. That sentence would place him at the low end of the benchmark sentencing range for second-degree murder. Page v. State, 657 P.2d 850, 855 (Alaska App.1983). This is where Boziel contended he belonged.

Judge Reese flatly rejected Boziel’s proposal. Finding that the nature of Boziel’s crime and the manner in which he committed it were extraordinarily aggravated, Judge Reese expressed the view that, but for the sentencing agreement, Boziel’s conduct would easily have warranted a sentence exceeding the thirty-year benchmark range. Judge Reese assessed Boziel’s conduct as follows:

This is a murder case. Mr. Boziel picked up [D.M.]. Shortly thereafter, shot her 3 times. She was killed suddenly, without warning, without reason. Completely innocent, and apparently completely unaware that it was about to [556]*556happen. She may not have even known it happened. She’s dead. This was senseless, it’s random, the presentence report referred to it as a thrill killing, and the defense has responded to that. I don’t know that that has any technical meaning, I suppose it’s as good a term as any. It’s certainly the way it sounds to me. And now this young woman is gone, ... her body was found in an alley, dumped in the trash.

Given the circumstances of the offense, Judge Reese found the thirty-year maximum the parties had agreed on to be lenient, concluding that “[i]t’s justified only because of the [state’s] proof problems.”

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Related

Brown v. State
973 P.2d 1158 (Court of Appeals of Alaska, 1999)

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Bluebook (online)
864 P.2d 553, 1993 Alas. App. LEXIS 55, 1993 WL 511776, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boziel-v-state-alaskactapp-1993.