State v. Harrod

• Citation: 183 P.3d 519,218 Ariz. 268
• Decision Date: 14 February 2008
• Docket Number: No. CR-05-0461-AP.,CR-05-0461-AP.
• Parties: STATE of Arizona, Appellee, v. James Cornell HARROD, Appellant.
• Court: Supreme Court of Arizona

183 P.3d 519

218 Ariz. 268

STATE of Arizona, Appellee, v. James Cornell HARROD, Appellant.

No. CR-05-0461-AP.

Supreme Court of Arizona, En Banc.

February 14, 2008.

Terry Goddard, Arizona Attorney General by Kent E. Cattani, Chief Counsel, Captital Litigation Section, Phoenix, Robert J. Gorman, Jr., Assistant Attorney General, Tucson, Attorneys for the State of Arizona.

Michael J. Dew, Phoenix, Attorney for James Cornell Harrod.

OPINION

RYAN, Justice.

¶ 1 In 2005, a jury determined that James Cornell Harrod should be sentenced to death for the 1988 murder of Jeanne Tovrea. An automatic notice of appeal was filed under Arizona Rules of Criminal Procedure 26.15 and 31.2(b) and Arizona Revised Statutes ("A.R.S.") section 13-4031 (2001). We have jurisdiction under Article 6, Section 5(3) of the Arizona Constitution and A.R.S. § 13-4031.

I¹

A

¶ 2 Just before 1:00 a.m. on April 1, 1988, Phoenix police officers responded to an alarm company call at a residence. A kitchen window had been completely removed and was sitting on a chair on the patio; an arcadia door was open. The police found the owner, Jeanne Tovrea, dead in her bed. She had been shot five times in the head with a .22 caliber gun-twice through a pillow and three times at close range. Several drawers from a jewelry case had been removed and set on furniture, and Jeanne's purse had been emptied on the kitchen counter. The rest of the house appeared undisturbed.

¶ 3 Jeanne had married Ed Tovrea, Sr., in 1973. She had an adult daughter from a previous marriage, Debbie Luster. Ed had three children from a previous marriage, Ed Jr., Georgia, and Priscilla. When Ed Sr. died in 1983, his estate was worth approximately $8 million. His will provided that each of his children would receive $200,000, which would be distributed in monthly payments of $1,500. Jeanne received certain real estate, stock, and personal property listed in the will. The remainder of Ed Sr.'s estate was put into a trust. The terms of the trust entitled Jeanne to all the income from the trust during her lifetime, and the trustees were permitted to invade the corpus of the trust for her benefit; upon her death, the trust would pass to Ed Sr.'s three children. At the time of Jeanne's death, the trust had an estimated worth of nearly $4 million.

¶ 4 Almost a year before her death, Jeanne met with a man in San Diego who called himself Gordon Phillips; he had been contacting her for information regarding Ed Sr.'s involvement in World War II. Jeanne's daughter, Debbie Luster, and Debbie's husband were present at the meeting. Phillips led Debbie to believe he had been a soldier in Vietnam,² but he did not seem interested in the World War II related books Debbie and her mother had brought. Debbie became suspicious of Phillips and called security after he left.

¶ 5 Immediately after Jeanne's death, Debbie told the police about Gordon Phillips. Debbie and her husband also found a micro-cassette tape in Jeanne's home that had several answering machine messages on it, two from Phillips.

¶ 6 In April 1992, a "re-enactment" of Jeanne's murder was aired on the national television show, Unsolved Mysteries. During the segment, one of the telephone messages from Phillips was played. In January 1994, an anonymous caller identified the voice on the tape as James Harrod's.

¶ 7 In September 1995, the police arrested Harrod for his involvement in the murder of Jeanne Tovrea. At this point, investigators had gathered considerable evidence against Harrod, including bank records showing large money transfers from Ed Tovrea, Jr., to Harrod, telephone records showing calls between Ed Jr. and Harrod, and statements regarding the jewelry and credit cards that were missing. In addition, after being offered immunity, Anne Costello, Harrod's ex-wife,³ informed police that: (1) Harrod told her that he had been hired by Ed Jr. to coordinate a hit on Jeanne for $100,000; (2) Harrod said that he had posed as Gordon Phillips to interview Jeanne; (3) when Harrod left their house on March 31, 1988, he told Anne he was going to supervise the murder and let her know that it was done when he returned the next morning; (4) Harrod spoke to Ed Jr. on the telephone the morning of April 1, 1988; (5) Harrod and Anne suddenly had large, unaccounted-for sums of money; (6) Harrod received Fed-Ex boxes full of cash from Ed Jr.; and (7) Harrod kept Jeanne's jewelry and credit cards in their house for a time before burying them in the desert. Police also found numerous latent fingerprints from Jeanne's kitchen counter, the outside of the window pane, the inside of the window pane, and a gate on her property that matched Harrod's fingerprints.

B

¶ 8 In November 1997, a jury convicted Harrod of premeditated murder and felony murder of Jeanne Tovrea. A judge subsequently sentenced Harrod to death in May 1998. This Court affirmed his conviction and death sentence. Harrod I, 200 Ariz. at 320, ¶ 66, 26 P.3d at 503.

¶ 9 In 2002, the United States Supreme Court, in Harrod v. Arizona, 536 U.S. 953, 122 S.Ct. 2653, 153 L.Ed.2d 830 (2002), vacated the judgment and remanded the case for further consideration in light of Ring v. Arizona (Ring II), 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). This Court subsequently remanded Harrod's death sentence for resentencing in 2003. State v. Harrod (Harrod II), 204 Ariz. 567, 569, ¶ 11, 65 P.3d 948, 950 (2003). We noted, however, that "[t]he Ring II decision does not affect our original opinion with respect to factual, procedural, and guilt issues, so we need not reconsider those portions of our original opinion." Id. at 568, ¶ 2, 65 P.3d at 949.

¶ 10 The resentencing proceeding occurred in 2005. The jury found that the State had proved beyond a reasonable doubt the existence of the (F)(5) "pecuniary value" aggravating factor. See A.R.S. § 13-703(F)(5) (Supp.1988). The jury also determined that Harrod should be sentenced to death after finding that the mitigation evidence was not sufficiently substantial to call for leniency. The judge sentenced Harrod to death by lethal injection.

II

¶ 11 On appeal, Harrod first claims that the superior court erred by permitting his ex-wife, Anne Costello, to testify to privileged marital communications. We review de novo whether a privilege exists and whether a party has waived it. Twin City Fire Ins. Co. v. Burke, 204 Ariz. 251, 254, ¶ 10, 63 P.3d 282, 285 (2003).

¶ 12 At Harrod's first trial in 1997, the superior court precluded the State from introducing any communications between Anne and Harrod in its case-in-chief. When Harrod later took the stand and denied having any conversations with Anne regarding the murder of Jeanne Tovrea, the court allowed the State to present Anne's testimony in rebuttal because Harrod had waived the privilege by testifying about those communications. On direct appeal, this Court upheld the superior court's treatment of Anne's testimony. Harrod I, 200 Ariz. at 317, ¶ 37, 26 P.3d at 500.

¶ 13 Before the 2005 resentencing, the superior court ruled that Anne could testify in the aggravation phase because it found the resentencing was a continuation of the guilt phase. See State v. Ring (Ring III), 204 Ariz. 534, 554 n. 19, ¶ 50, 65 P.3d 915, 935 n. 19 (2003) ("A capital trial comprises just one trial, divided between guilt and sentencing phases, and has always been understood as such, by both this court and by the U.S. Supreme Court."). In so holding, the superior court relied primarily on the "law of the case" theory.⁴ In addition, the superior court ruled that a 1998 amendment to A.R.S. § 13-4062(1) was a procedural change that did not implicate the Ex Post Facto Clauses of the Federal and Arizona Constitutions. U.S. Const. art. 1, §§ 9, 10; Ariz. Const. art. 2, § 25.

¶ 14 In 1998, the legislature amended the statute codifying the marital communications privilege, A.R.S. § 13-4062(1), to add an exception to the marital privilege when a spouse voluntarily testifies against the other spouse in a prosecution for "an offense listed in section 13-604, subsection [W], paragraph [4]."⁵ 1998 Ariz. Sess. Laws, ch. 289, § 19 (2d Reg.Sess.). Section 13-604(W)(4) (Supp. 2007) defines "serious offenses" and includes first degree murder. The amendment to § 13-4062(1) became effective after Harrod's first trial in 1997, but before his 2005 resentencing. Harrod argues that application of the amended law to his resentencing violates A.R.S. § 1-244 (2002) ("No statute is retroactive unless expressly declared therein.") and the Ex Post Facto Clauses of the Federal Constitution and the Arizona Constitution. U.S. Const. art. 1, §§ 9, 10; Ariz. Const. art. 2, § 25.

¶ 15 In Harrod I, this Court held that when "a witness testifies about otherwise privileged marital communications, or denies having relevant communications with his spouse, he waives the marital communications privilege with respect to those communications and may be impeached by his spouse's testimony." 200 Ariz. at 317, ¶ 37, 26 P.3d at 500. Moreover, this Court has previously held that "once the privilege is waived, the confidentiality sought to be protected is merely a legal fiction.... [Therefore], once waived, whether at a former trial or otherwise, [the defendant] cannot reassert his or her privilege." State v. Mincey, 141 Ariz. 425, 439, 687 P.2d 1180, 1194 (1984) (physician-patient privilege); see also 1 Joseph M. Livermore, Robert Bartels & Anne Holt Hameroff, Arizona Practice: Law of Evidence § 501.1, at 124 (4th ed. 2000) ("Once a privilege has been waived, and confidentiality lost, it may not be reasserted."); Edward J. Imwinkelried, The New Wigmore: Evidentiary Privileges § 6.12.5(c), at 932-33 (2002) (observing that "the prevailing view is that so long as the retrial was not necessitated by an error affecting the privilege waiver, a waiver at the initial trial is still in effect at the retrial").

¶ 16 Because Harrod waived any objection to his ex-wife's...