Judge denies new trial for Ross
man serving life for deaths of 2 wives
By Gabrielle Banks, Pittsburgh
Tuesday, December 11, 2007
A Ross man serving two life
sentences in prison for killing his first and second wives under similar
circumstances lost a petition for a new trial yesterday.
Allegheny County Common Pleas
Judge Donna Jo McDaniel denied Timothy Boczkowski, 52, a new trial in
the November 1994 strangulation of his second wife, Maryann Fullerton-Boczkowski.
Police found the 35-year-old woman unresponsive in the family hot tub.
She had 50 bruises, mostly on her face and neck, investigators said.
Four years earlier, in November
1990, the denture maker's first wife, Mary Elaine Boczkowski, was found
dead in a bathtub at her home in North Carolina, but pathologists were
inconclusive about her cause of death and he was not charged.
After the Allegheny County
district attorney charged him in the 1994 hot tub homicide, a prosecutor
in Greensboro, N.C., filed homicide charges against Mr. Boczkowski in
the earlier bathtub death. A pathologist later ruled that the first wife
had died of compression of the chest and said the cause was homicide by
A North Carolina jury convicted
him of killing Mary Elaine, the mother of his three children, and
sentenced him to life in prison. Then, in 1999, an Allegheny County jury
found him guilty of first-degree murder in the death of his second wife.
The jury here sentenced him to death based on the aggravating factor
that his first wife had died in a similar manner.
In 2004, the state Supreme Court
ordered that the death sentence be overturned because the extradition
was illegal and the Allegheny County jury was unfairly swayed by his
first conviction. Judge McDaniel then gave him a second life sentence.
Defense lawyer Erika Kreisman
argued yesterday that the trial lawyer, James Herb, who got the state
Supreme Court to overturn the death sentence, was ineffective because he
did not request a new trial altogether.
She said her client was not able
to call his brother as a character witness. She also argued that he
would have been able to take the stand if not for the illegal
extradition and prior conviction. Had Mr. Boczkowski not had a prior
murder conviction, she said, he would not have had a "murder-prone," "death
qualified" jury hear his case.
Mr. Herb said yesterday that
despite appearances, "the dissimilarities were greater than the
similarities" in the two deaths. The defendant had separated from his
first wife and "the marriage was going nowhere." In the second death, he
said, "there was no indication of marital discord."
Bluebeard sentenced to life
March 24, 2004
The state Supreme Court
on Tuesday overturned the death sentence for a Ross man convicted of
killing his second wife in the couple's hot tub.
The court ordered
Timothy Boczkowski, 48, to be sentenced to life in prison without parole
for the Nov. 7, 1994, strangulation of his 36-year-old wife, Maryann.
The 5-1 ruling upheld
the first-degree murder conviction against Boczkowski, who also has been
convicted of murdering his first wife, Elaine, 34, in a bathtub in North
Carolina in 1990.
The court said the
Allegheny County District Attorney's Office erred in allowing Boczkowski
to be tried for the North Carolina murder first.
The 1996 first-degree
murder conviction in North Carolina for Elaine's death was the sole
legal basis for the Pennsylvania death sentence. The court said
Boczkowski should have been tried first in Allegheny County, so the
death penalty verdict on May 6, 1999, was invalid.
James Herb, Boczkowski's
lawyer, said he was pleased that the death penalty was overturned.
.."But we are disappointed the court did not grant him a new trial,"
Herb said, adding that he will review the ruling before deciding on an
District Attorney Stephen A. Zappala Jr. issued a statement saying the
error in the case occurred before he took office in 1998.
Unless there are new
developments in the case, the statement reads, "I accept the opinion of
the Pennsylvania Supreme Court as the final statement in this matter."
The North Carolina and
Pennsylvania murders -- the former by chest compression and the latter
by manual strangulation -- became entwined soon after police found
Boczkowski trying to revive Maryann in a hot tub at their home.
North Carolina officials
charged Boczkowski with the 1990 murder of Elaine after his arrest in
Allegheny County and asked for his extradition. Allegheny County Common
Pleas Judge Kathleen Durkin agreed to extradite Boczkowski, but only
after he was tried in Pennsylvania.
According to yesterday's
ruling, then-Deputy District Attorney W. Christopher Conrad wrongly
circumvented Durkin's ruling and allowed Boczkowski to be sent to North
Carolina for trial.
"When a governing court
order exits," Justice Ronald D. Castille wrote in the opinion, "it is
for the court and not a party to unilaterally modify or nullify that
Conrad, now in private
practice, said his memory of the case is unclear, but he can't imagine
that he would have allowed a prisoner to be extradited in violation of a
Conrad said he does
remember that the Pennsylvania case was bogged down in procedural issues
and that North Carolina authorities were worried about missing deadlines
for prosecuting Boczkowski.
"One thing is for
certain," Conrad said. "It wasn't done to orchestrate the death
Justice J. Michael Eakin
agreed that the guilty verdict should be preserved, but wrote in a
dissenting opinion that the death penalty should not have been
There was no evidence,
Eakin said, of malicious intent behind the decision to extradite
Herb said he believes
the Allegheny County jury should not have been allowed to hear evidence
about the death of Boczkowski's first wife during the trial into the
death of his second wife.
STATE OF NORTH CAROLINA v. TIMOTHY BOCZKOWSKI
Filed 15 September 1998
1. Evidence-- circumstances of
second wife's death -- trial for murder of first wife -- absence of
Evidence of the circumstances surrounding the death
of defendant's second wife was properly admitted in this prosecution of
defendant for murder of his first wife to show that the first wife's
death was not an accident where the trial court found the following
similarities between the deaths of both of defendant's wives: both
victims were married to defendant at the times of their deaths; both
wives died at the home they shared with defendant and defendant was
present at the time each wife died; defendant was performing CPR on each
wife when emergency personnel arrived; the first wife died in or around
a bathtub and the second wife died in or around a hottub; defendant
claimed that both wives accidently drowned and that drinking problems
had contributed to their deaths; both wives were similar physically and
were approximately the same age; both women died on a Sunday; and
insurance money was involved in both incidents.
2. Witnesses-- number of witnesses -- no abuse of
In the prosecution of defendant for the murder of his
first wife, the trial court did not abuse its discretion by admitting
the testimony of 17 witnesses about the death of defendant's second wife.
3. Criminal law-- requested instruction -- trial
for only one murder -- evidence of second murder -- limiting instruction
The trial court did not err by denying defendant's
request for an instruction clarifying to the jury that defendant was on
trial only for the death of his first wife where the trial court
instructed the jury that evidence that defendant's second wife died
under similar circumstances was admitted solely for the purpose of
showing defendant's intent and the absence of accident.
4. Evidence-- hearsay -- excited utterance
Statements made by defendant's nine-year-old daughter
to a family friend within hours after the death of her mother that she
had heard her parents arguing and her mother telling defendant, "No, Tim,
no; stop," were admissible in this first-degree murder prosecution under
the excited utterance exception to the hearsay rule, even if they were
made in response to questions by the family friend.
Appeal by defendant from judgment entered 12
November 1996 by Judge Catherine C. Eagles in Guilford County Superior
Court. Heard in the Court of Appeals 17 August 1998.
At 2:55 a.m. on 4 November 1990, emergency
personnel were summoned by a 911 call to the Boczkowski family's
apartment in Greensboro. Rescue personnel from the Greensboro Fire
Department and Guilford County Emergency Medical Services were directed
into the family's second floor bathroom by the family's three children.
The rescuers found defendant Timothy Boczkowski attempting to perform
CPR on his wife Elaine, who was lying nude on the floor. Elaine was not
breathing and had no pulse. The rescuers attempted to resuscitate her,
but failed. Elaine was rushed to the hospital, where she was pronounced
dead at 4:16 a.m.
At the police department, defendant told officers
he was estranged from his wife, although they were still living together.
He said they had separately attended their church social that evening,
and that his wife had been drinking alcoholic beverages before the
church function. Defendant stated that he came home alone around 12:40
Defendant gave different versions of ensuing
events to investigating officers. In one version, he claimed he was
listening to headphones while asleep in the master bedroom and was
awakened when he heard a noise in the bathroom. Defendant stated he used
a screwdriver to pop the lock of the bathroom door when he got no answer
after knocking. In another version, defendant stated that he was
listening to music downstairs on the headphones and heard a noise in the
bathroom. He stated he took the hinges off the door to gain entry into
In both versions, defendant claimed he found
Elaine lying on her back in the tub with her head under water. He said
he pulled her head up, placed her nightgown under her head, and pushed
on her stomach to force water out. Defendant stated that vomit came out
of her mouth instead of water. Defendant then lifted Elaine out of the
bathtub, again tried to force water from her by pushing and squeezing
her abdomen, and attempted CPR to revive her. After unsuccessfully
attempting to revive his wife, he called 911.
Dr. Deborah Radisch,
Associate Chief Medical Examiner for North Carolina, performed an
autopsy on Elaine's body. Dr. Radisch found several bruises on Elaine's
arm and a diagonal pattern of three parallel lines measuring 9-11 inches
long impressed on Elaine's stomach. In addition, Dr. Radisch found five
fresh bruises on the interior of Elaine's scalp and testified that only
one of the five bruises could have resulted from someone falling and
hitting their head in the bathtub. The toxicology report indicated that
Elaine did not have alcohol or anti-depressant drugs in her blood when
she died. Dr. Radisch could not determine the cause of Elaine's death,
but she opined that Elaine did not die from drowning. Elaine's death
certificate indicated that her cause of death was "undetermined," and
the investigation into her death remained open.
On 7 November 1994, Greensboro detectives were
notified that defendant's second wife, Mary Ann, had died in
Pennsylvania under circumstances similar to Elaine's death. Again
defendant gave several versions of the happenings surrounding his wife's
death. Defendant claimed Mary Ann had consumed fourteen beers and some
wine on the day she died. In several versions, defendant claimed he left
his wife in their hot tub while he went to shower or to use the bathroom.
Defendant claimed that when he returned ten to fifteen minutes later, he
found Mary Ann unconscious in the hot tub.
Emergency medical personnel and police pulled
Mary Ann out of the water and tried to revive her. Paramedics learned
that defendant had previously attempted to resuscitate Mary Ann.
Detectives interviewed defendant and noted that defendant had scratch
marks on his neck and a fresh nick on his left thumb. They asked
defendant to remove his shirt and saw fresh red scratch marks on his
back and sides. Defendant claimed he was sunburned and Mary Ann had
given him a scratch massage, but detectives noticed that defendant's
skin was pale.
Mary Ann's autopsy revealed multiple bruises and
abrasions on her body, including two bruises on her neck. Dr. Leon Rozin
found five different bruises on the interior of Mary Ann's scalp. All of
the bruises were fresh and had been sustained shortly before Mary Ann's
death. Dr. Rozin concluded that Mary Ann had died as the result of
homicide by manual strangulation and not by natural causes. Defendant
was charged in Pennsylvania with murdering Mary Ann and in Guilford
County, North Carolina, with murdering Elaine.
During the trial in the instant case, defendant
presented evidence that Elaine accidentally drowned in her bathtub and
Mary Ann died as a result of a heart attack while in their hot tub. The
State presented contrary evidence from witness Randy Erwin, who shared a
cell with defendant in a Pennsylvania jail after defendant's arrest for
murdering Mary Ann. Erwin testified that he was reading a newspaper
article about Mary Ann's and Elaine's murders when defendant approached
him and boasted, "I'm famous . . . I'm the hot tub man." Erwin testified
that he asked defendant why defendant killed both women the same way and
defendant replied, "I don't know. That was stupid, wasn't it?" On 1
November 1996, defendant Timothy Boczkowski was convicted of the first
degree murder of Mary Elaine Pegher Boczkowski, and was sentenced to
life in prison. Defendant appeals.
Attorney General Michael F. Easley, by
Special Deputy Attorney General Thomas F. Moffitt, for the State.
Appellate Defender Malcolm Ray Hunter, Jr., by
Assistant Appellate Defender J. Michael Smith, for defendant appellant.
Defendant contends the trial court committed
prejudicial error by: (I) denying his Rule 403 motion to suppress
evidence of the subsequent death of his second wife in Pennsylvania; (II)
admitting the testimony of 17 witnesses about the death of his second
wife; (III) denying defendant's request for an instruction specifically
clarifying to the jury that defendant was only on trial for the death of
his first wife in North Carolina; and (IV) permitting the State to
introduce certain hearsay statements by defendant's daughter Sandy
Boczkowski as excited utterances.
To obtain appellate review, a question raised by
an assignment of error must be presented and argued in the brief. In
re Appeal from Environmental Management Comm., 80 N.C. App. 1, 18,
341 S.E.2d 588, 598, disc. review denied, 317 N.C. 334, 346 S.E.2d
139 (1986). Questions raised by assignments of error which are not
presented in a party's brief are deemed abandoned. State v. Wilson,
289 N.C. 531, 535, 223 S.E.2d 311, 313 (1976). Defendant's brief failed
to address numerous assignments of error including numbers 1, 3-16, and
18-25, and those issues are abandoned.
Defendant first contends the trial court erred
by denying defendant's motion under Rule 403 to suppress evidence of the
subsequent death of his second wife in Pennsylvania. Evidence of
uncharged misconduct is admissible against a defendant under N.C. Gen.
Stat. § 8C-1, Rules 403 (1993) and 404(b) (1993) so long as the evidence
is probative of a relevant issue in the case, is admitted for some
purpose other than showing defendant's propensity for the similar
conduct, and the probative value of the evidence is not substantially
outweighed by the danger of unfair prejudice or needless presentation of
cumulative evidence. State v. Stager, 329 N.C. 278, 310, 406 S.E.2d
876, 894 (1991).
In the instant case, the State offered evidence
of the circumstances surrounding the death of defendant's second wife,
Mary Ann, to prove that Elaine's death was not an accident. The trial
court concluded there was sufficient similarities between the two deaths
"to give the uncharged conduct probative value and render it relevant to
the issues to be decided in this case" because "it tends to show absence
of accident in this case, explains the delay in charging the Defendant
with this murder and gives context to certain of the witnesses'
Rule 404(b) provides that
[e]vidence of other crimes, wrongs, or acts
is not admissible to prove the character of a person in order to show
that he acted in conformity therewith. It may, however, be admissible
for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake,
entrapment or accident.
N.C. Gen. Stat. § 8C-1, Rule 404(b) (Cum.
Supp. 1997). In Stager, 329 N.C. at 309, 406 S.E.2d at 894, our
Supreme Court upheld the admissibility of evidence of the death of that
defendant's first husband in her trial for the murder of her second
husband ten years later under similar circumstances. The Supreme Court
held that Rule 404(b) is a general rule of inclusion of relevant
evidence of other crimes, wrongs or acts, provided that such evidence
must be excluded if its only probative value is to show that defendant
has the propensity or disposition to commit an offense of the nature of
the crime charged. Id. at 302, 406 S.E.2d at 890. The relevant
test under Rule 404(b) is whether there was "substantial evidence
tending to support a reasonable finding by the jury that the defendant
committed a similar act or crime and its probative value is not limited
solely to tending to establish the defendant's propensity to commit a
crime such as the crime charged." Id. at 303-04, 406 S.E.2d at
When an accused contends a victim's death was an
accident rather than a homicide, "[e]vidence of similar acts may be
offered to show that the act in dispute was not inadvertent, accidental
or involuntary." Id. at 304, 406 S.E.2d at 891. Based on the
doctrine of chances, "the more often a defendant performs a certain act,
the less likely it is that the defendant acted innocently." Id.
at 305, 406 S.E.2d at 891.
In the instant case, the trial court found the
following similarities between the deaths of both of defendant's wives:
a. that both alleged victims were women
and were married to the Defendant at the time of their death;
b. that both alleged victims died at the
home they shared with the Defendant and the Defendant was present at the
time each woman died;
c. that the Defendant was the last person
to see each woman alive and was performing CPR on each when emergency
d. that the alleged victim in this case
died in or around a bathtub and the deceased in the other incident died
in or around a hottub;
e. that the Defendant made statements in
both cases that his wife had accidentally drowned;
f. that the Defendant made statements in
both cases that his wife had a drinking problem and that said drinking
problem had contributed to her death;
g. that both women were similar
physically in that both weighed 151 pounds at the time of death and the
alleged victim in this case was 34 years of age at the time of death and
the second wife was 35 at the time of death;
h. that both women died on a Sunday; and
i. insurance money was involved in both
Based on these findings, the trial court
concluded the subsequent incident was sufficiently similar to give it
probative value and, thus, it did not merely show defendant's propensity
to commit this type of crime. Further, the trial court concluded the
similar conduct was relevant to show absence of an accident, to explain
the delay in charging defendant with the first wife's murder, and to
give context to some of the witnesses' testimony. We note that our
Supreme Court has held that
[e]vidence of other crimes committed by a
defendant may be admissible under Rule 404(b) if it establishes the
chain of circumstances or context of the charged crime. Such evidence is
admissible if the evidence of other crimes serves to enhance the natural
development of the facts or is necessary to complete the story of the
charged crime for the jury.
State v. White, 340 N.C. 264, 284, 457 S.E.2d
841, 853 (1995) (citations omitted), cert. denied, 516 U.S. 994,
133 L. Ed. 2d 436 (1995).
Finally, the trial court concluded the probative
value of the evidence outweighed any undue prejudice to defendant
pursuant to Rule 403, and the evidence would not confuse or mislead the
jury or cause undue delay. Our careful review of the record reveals the
trial court did not err in admitting the evidence of the death of
defendant's second wife. Therefore, this assignment of error is
Next, defendant contends the trial court erred
by admitting the testimony of 17 witnesses about the death of his second
wife. Defendant contends the volume of evidence introduced through the
testimony of these witnesses about Mary Ann's death deprived him of a
fair trial. This same argument was rejected by our Supreme Court in
Stager, 329 N.C. at 317, 406 S.E.2d at 898. In Stager, the
State introduced detailed testimony about the death of defendant's first
husband from 20 witnesses. Id. at 308, 406 S.E.2d at 893. In
overruling defendant's objection, our Supreme Court stated:
Generally, "[a]ll relevant evidence is
admissible." N.C.G.S. § 8C-1, Rule 402 (1988). The extent to which
counsel may pursue a permissible line of inquiry in questioning
witnesses is a matter left to the sound discretion of the trial court.
Cf. Coffey, 326 N.C. at 281, 389 S.E.2d at 56 (applying Rule
403). Here, we detect no abuse of that discretion by the trial court.
Id. In the instant case, defendant has not
shown any unfair prejudice and our careful review of the record does not
reveal that the trial court abused its discretion. Thus, this assignment
of error is overruled.
In addition, defendant claims the trial court
erred by denying defendant's request for an instruction specifically
clarifying to the jury that defendant was only on trial for the death of
his first wife Elaine in North Carolina, and not for the death of his
second wife Mary Ann in Pennsylvania. A judge is not required to frame
instructions with any greater particularity than is necessary to enable
the jury to understand and apply the law to the evidence. State v.
Weddington, 329 N.C. 202, 210, 404 S.E.2d 671, 677 (1991). The trial
court instructed the jury as follows:
Now, evidence has been received tending to
show that Mr. Boczkowski's second wife Mary Ann Boczkowski, died under
similar circumstances. This evidence was received solely for the purpose
of showing that Mr. Boczkowski had the intent, which is a necessary
element of the crime charged in this case, and for the purpose of
showing the absence of accident, and explaining some of the
circumstances, including any delay in charging Mr. Boczkowski, arising
during the investigation. If you believe this evidence, you may consider
it, but only for that limited purpose and for no other purpose.
These instructions show the trial court essentially
conveyed what defendant was requesting, and enabled the jurors to
correctly weigh and consider the evidence concerning the death of
defendant's second wife. Therefore, this assignment of error is
Finally, defendant contends the trial court
erred by permitting the State to introduce the alleged hearsay
statements of Sandy Boczkowski as excited utterances. Defendant objected
to the introduction of statements allegedly made within hours of
Elaine's death by his daughter Sandy, then nine years old, to Gerri
Minton, a family friend and member of the Boczkowski family's church.
The trial judge held a voir dire hearing and determined the statements
were admissible as spontaneous utterances under N.C. Gen. Stat. § 8C-1,
Rule 803(2) (1992). Thereafter, Minton testified about Sandy's
N.C. Gen. Stat. § 8C-1, Rule 803(2) allows into
evidence "[a] statement relating to a startling event or condition made
while the declarant was under the stress of excitement caused by the
event or condition." Our Supreme Court has held that "[i]n order to fall
within this hearsay exception, there must be (1) a sufficiently
startling experience suspending reflective thought and (2) a spontaneous
reaction, not one resulting from reflection or fabrication." State v.
Smith, 315 N.C. 76, 86, 337 S.E.2d 833, 841 (1985). When considering
the spontaneity of statements made by young children, there is more
flexibility concerning the length of time between the startling event
and the making of the statements because "the stress and spontaneity
upon which the exception is based is often present for longer periods of
time in young children than in adults." Id. at 87, 337 S.E.2d at
In the instant case, the evidence showed that as
emergency medical personnel arrived at the Boczkowski apartment, the
three children were taken to a neighbor's apartment until later that
morning. Gerri Minton arrived at the Boczkowski apartment at
approximately 10:00 a.m. to help the family. While at the apartment,
Sandy told Minton that earlier that morning she heard her parents
arguing and her mother telling defendant, "No, Tim, No; Stop." Later
that same day, Minton went upstairs with Sandy to help her pack some
clothes to spend the night at someone else's house. As they walked past
the bathroom where Sandy's mother died, Sandy repeated to Minton that
she had heard her parents arguing and her mother telling defendant, "No,
Tim, No; Stop."
Defendant contends these comments are
inadmissible because they were merely answers to questioning by Minton.
Even if these statements were made in response to questions by Minton,
statements or comments made in response to questions do not necessarily
rob the statements of spontaneity. State v. Thomas, 119 N.C. 708,
714, 460 S.E.2d 349, 353 (1987).
Defendant also contends the statements are
inadmissible because at trial Sandy testified she did not make these
statements. However, Rule 803(2) allows the statement to be admitted
regardless of the declarant's subsequent testimony. Sandy's subsequent
testimony goes to the weight the jury should give to the statements
rather than to their admissibility.
The record reveals sufficient evidence from which
the trial judge could conclude Sandy's statements were the product of
spontaneous reactions to a traumatic event rather than the result of
reflection or fabrication. Thus, this assignment of error is overruled.
We have carefully reviewed the remaining
assignments of error and find them to be without merit. Defendant's
trial was free from prejudicial error.
Chief Judge EAGLES and Judge MARTIN, Mark D.,
M RACE: W TYPE: N MOTIVE: CE
"Bluebeard" slayer of wives for insurance.
Life term in N.C., 1996.