State v. Harrod

• Decision Date: 16 July 2001
• Docket Number: No. CR-98-0289-AP.,CR-98-0289-AP.
• Citation: 26 P.3d 492,200 Ariz. 309
• Parties: STATE of Arizona, Appellee. v. James Cornell HARROD, Appellant.
• Court: Arizona Supreme Court

26 P.3d 492

200 Ariz. 309

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

No. CR-98-0289-AP.

Supreme Court of Arizona, En Banc.

July 16, 2001.

Janet Napolitano, Attorney General, by Kent E. Cattani, Chief Counsel, Capital Litigation Section and Monica Beerling Klapper, Assistant Attorney General, Phoenix, Attorneys for the State of Arizona.

James J. Haas, Maricopa County Public Defender, by James H. Kemper and Christopher Johns, Deputy Public Defenders, Phoenix, Attorneys for James Cornell Harrod.

OPINION

MARTONE, Justice.

¶ 1 A jury convicted James Cornell Harrod of premeditated murder and felony murder. The trial court sentenced him to death. Appeal to this court is automatic under Rules 26.15 and 31.2(b), Ariz. R.Crim. P., and direct under A.R.S. § 13-4031. We affirm.

I. BACKGROUND

¶ 2 At the time of his death, Ed Tovrea Sr. had an estimated net worth of $6 million. He left a significant portion of this estate outright to his wife, Jeanne Tovrea. The rest of the estate, valued at approximately $3.9 million, was put into a trust. During the remainder of her life, Jeanne was the beneficiary of the income from this trust. Upon Jeanne's death, the residuary was to go to Ed Sr.'s three children, including his son, Ed Jr. (who was known by the nickname "Hap").

¶ 3 Sometime in 1987, Jeanne Tovrea began to receive phone calls from Gordon Phillips, who claimed to be a stringer for Time Life Publications, and who said that he was interested in Ed Sr.'s days as a prisoner of war. Because Jeanne was suspicious of the persistent caller, she asked a friend, who was a retired CIA agent, to investigate Gordon Phillips. His inquiries were fruitless.

¶ 4 On July 11, 1987, Jeanne met with Phillips in Newport Beach, California. Deborah Nolan Luster, Jeanne's daughter, was present and spoke with Phillips for 30 to 45 minutes. Neither Nolan Luster nor Jeanne met with Gordon Phillips again.

¶ 5 Between midnight and 1 a.m. on April 1, 1988, a burglar alarm went off in Jeanne's house in Phoenix. When the police arrived, they found that a piece of glass and a rubber seal had been removed from the window above the kitchen sink. Jeanne was found in her bed. She had been shot in the head five times. Three of the shots had been fired through a pillow.

¶ 6 Although the house was protected by more than one burglar alarm, the window above the kitchen sink was the only point of entry that was not connected to an alarm. The police determined that the alarm had been set off when the intruder left through the arcadia door. Eighteen of the fingerprints found on or around the window and the counter below it were Harrod's.

¶ 7 On April 19, 1988, while cleaning Jeanne's home, Nolan Luster's husband discovered a micro-cassette tape containing a phone message from Gordon Phillips. He gave the tape to the police the next day. In May 1991, Nolan Luster attended a photographic lineup which did not include a picture of Harrod. She did not identify anyone as Phillips.

¶ 8 On April 15, 1992, the television program Unsolved Mysteries ran a piece on the murder featuring the answering machine message from Gordon Phillips. Harrod's then brother-in-law, Curt Costello, recognized the voice as Harrod's. Curt taped a rerun of the episode and sent copies to his brother Mark Costello, and his sister, Anne Costello (Harrod's wife at the time). He also sent a copy to Jeff Fauver, a friend who was a former FBI agent and who was then working as a criminal investigator for the United States Department of Defense. All three of the recipients knew Harrod well and recognized the voice on the tape as Harrod's. Fauver called the police anonymously on December 9, 1993.

¶ 9 In November 1994, Anne Costello contacted the police through her lawyer. She was granted immunity from prosecution on condition that she was not a participant in the murder and was completely truthful during the investigation. Shortly thereafter, the police prepared a photographic lineup containing Harrod's picture. Nolan Luster did not identify anyone as Gordon Phillips.

¶ 10 Harrod was arrested on September 14, 1995, after the police matched his fingerprints to those at the crime scene. On December 19, 1996, Nolan Luster positively identified Harrod at a live lineup. Telephone records showed that during the months preceding the murder over 1,500 phone calls had been made between Harrod and Hap, and that 52 of those calls took place the day before the murder. Hap had sent over $35,000 to Harrod in various amounts.

¶ 11 At trial, the state claimed that Hap had arranged to pay Harrod $100,000 to murder Jeanne so that Hap and his siblings could take under the trust.¹ Harrod testified in his own defense, stating that he never posed as Gordon Phillips, met Jeanne, left messages on her answering machine, or broke into her home. He denied murdering Jeanne or participating in the murder in any way. He also suggested that the fingerprints at the scene identified as his had been created with a prosthetic fingerprint glove. He claimed that his relationship with Hap involved business ventures in China. He denied ever discussing the murder with his wife, Anne Costello. On rebuttal, Anne Costello testified that Harrod had told her extensively about his involvement in the murder.²

¶ 12 Harrod was convicted of first degree murder and felony murder. The trial court found that the pecuniary gain aggravating factor, A.R.S. § 13-703(F)(5), and three mitigating factors had been proven. Finding that the mitigating factors were not sufficiently substantial to call for leniency, the court sentenced Harrod to death.

II. ISSUES

¶ 13 Harrod raises the following issues:

A. TRIAL ISSUES

1. Did the trial court err in excluding third party culpability evidence?

2. Did the trial court err in finding that Nolan Luster had not been successfully hypnotized and permitting her to testify about an identification she made of Harrod after the failed hypnosis session?

3. Did the trial court err in permitting Anne Costello to testify that she left him because she could not live with someone who could be involved in a murder?

4. Did the trial court err in permitting Harrod's ex-wife to testify about acts she observed and to impeach Harrod by testifying about otherwise privileged marital communications after he denied having such conversations?

B. SENTENCING ISSUES

1. Did the trial court err in refusing to admit the results of a polygraph examination at the aggravation/mitigation hearing?

2. Is the Arizona death penalty statute unconstitutional on its face and/or as applied in this case?

III. ANALYSIS

A. TRIAL ISSUES

1. Third Party Culpability Evidence

¶ 14 The trial court excluded evidence of a supposed confession by James Majors, a California death row inmate, that he killed Jeanne Tovrea. Majors purportedly confessed to Joe Calo, a fellow death row inmate. Calo pled guilty to a series of murders in exchange for a sentence other than death. Calo claimed that Majors was the trigger man in the murders to which Calo eventually pled guilty, and that Majors had also confessed to the murder of Jeanne Tovrea. But Calo's accounts of the Tovrea murder (as allegedly confessed by Majors) were inconsistent with each other and with the physical evidence found at the scene.³ Police efforts to corroborate Majors' confession failed. When questioned, Majors denied involvement in the murder and denied making the confession.

¶ 15 Harrod contends that Majors' statement should have been admitted under the statement against penal interest exception to the hearsay rule. Rule 804(b)(3), Ariz. R. Evid., provides:

Rule 804. Hearsay Exceptions; Declarant Unavailable

....

(b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witnesses:

....

(3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability, ... that a reasonable person in the declarant's position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

¶ 16 When a statement is offered to exculpate the defendant, the rule imposes three requirements. First, the declarant must be unavailable. Rule 804(a), Ariz. R. Evid.; see State v. Medina, 178 Ariz. 570, 576, 875 P.2d 803, 809 (1994)

. Second, the statement must be so far against the declarant's interest that he would not have made it unless he believed it to be true. Third, corroborative circumstances must "clearly indicate the trustworthiness of the statement." Rule 804(b)(3), Ariz. R. Evid. The trial court must examine any evidence that corroborates or contradicts the statement to find whether a reasonable person could conclude that the statement is true. State v. LaGrand, 153 Ariz. 21, 28, 734 P.2d 563, 570 (1987).

¶ 17 Harrod offered no evidence that Majors would have refused to testify had he been called. He asserts that a person on death row in California would not come to Arizona to admit another murder. At the hearing on the motion to preclude, defense counsel stated: "We don't at this stage know whether or not Mr. Majors would be available to testify." Tr. Nov. 7, 1997, at 130. Because he made no affirmative showing that Majors would have refused to testify if called, Harrod failed to show that Majors was "unavailable" within the meaning of Rule 804(b)(3). Cf. LaGrand, 153 Ariz. at 27,

734 P.2d at 569; State v. Henry, 176 Ariz. 569, 575, 863 P.2d 861, 867 (1993) (declarant was legally unavailable because of showing that declarant would have asserted his Fifth Amendment privilege if called to testify); State v. Thoma, 313 Or. 268, 834 P.2d 1020, 1025 (1992) (under analogous rule,...