State of Arizona v James Cornell Harrod (Supplemental Opinion)
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FILED SUPREME COURT OF ARIZONA APR - 3 2003 NOEL K. DESSAINT CLERKSUPREME COURT STATE OF ARIZONA, ) Arizona Supreme Court No. CR 98 0289 AP Appeflee, v. ) Maricopa County Superior Court No. CR 95--09046 JAMES CORNELL HARROD, Appellant. ) SUPPLE~NTAL OPINION Appeal from the Superior Court of Maricopa County No. CR 95 09046 Honorable Ronald S. Reinstein, Judge REMA~NDED FOR RESENTENCING Janet Napolitano, Attorney General by Kent S. Cattani, Chief Counsel, Capital Litigation Section and Robert L. Ellman, Assistant Attorney General and James P. Scene, Assistant Attorney General and John P. Todd, Assistant Attorney General and Bruce N. Ferg, Assistant Attorney General Attorneys for State of Arizona Phoenix James J. Haas, Maricopa County Public Defender by Christopher V. Johns, Deputy Public Defender and James H. Kemper, Deputy Public Defender Attorneys for James Cornell Harrod Phoenix Tucson McGregor, Vice Chief 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 of the Arizona Rules of Criminal Procedure, and direct under Arizona Revised Statutes (A.R.S.) section 13-4031 ¶2 (2001). This court issued an opinion affirming Harrod s conviction and death sentence. (2001) . State v. Harrod, 200 Ariz. 309, 26 P.3d. 491 The United States Supreme Court vacated tne ~uogment anc remanded for further consideration in light of Ring v. Arizona, 536 U.S. U.S. 584, , 122 5. Ct. 2428 122 5. Ct. 2653 (2002) (2002) (Ring II). (mem.). Harrod v. Arizona, The 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. In this supplemental opinion, we reconsider Harrod s sentence in light of Ring II. I. In Ring ¶3 II, the United States Supreme Court held that Arizona s former capital sentencing scheme violates the right to a jury trial guaranteed by the Sixth Amendment to the United States Ring II, Constitution. declared that defendants . . 536 U.S. at [c]apital . less than non capital Id. at 122 S. Ct. at 2432. , The Court reversed our 200 Ariz. 267, 25 P.3d 1139 (2001) (Ring and remanded for further proceedings consistent with its decision. Ring ¶4 no The Court conditions an increase in their maximum decision in State v. Ring, I), defendants, 122 S. Ct. at 2443. are entitled to a jury determination of any fact on which the legislature punishment. , II, 536 U.S. at Following , the 122 5. Ct. at 2443. Supreme Court s Ring II decision, we consolidated all death penalty cases in which this court had not yet The legislature has since amended A.R.S. § 13 703. 2002 Ariz. Sess. Laws, 5th Spec. Sess., ch. 1, § 1. 2 See issued a direct apoeal mandate to determine whether Ring this court to reverse or vacate the defendants in State III), v. Ring, An:. , ¶ 53, P.3d , reouires death sentences. (2003) (Ring we held that we will examine a death sentence imposed under Arizoda s superseded capital sentencing statutes for harmless error. II. ¶5 The jury unanimously found Harrod guilty of both premeditated murder and felony murder for killing Jeanne Tovrea. The trial court found that the State had proven beyond a reasonable doubt the statutory aggravating circumstance in A.R.S. section 13 703.F.5: that Harrod committed the murder as consideration for the receipt of pecuniary gain. ¶6 Harrod failed to prove by a preponderance of the evidence any of the statutory mitigating factors. However, Harrod proved by a preponderance of the evidence the following non-statutory mitigating factors: lack of criminal record, adjustment to incarceration, and family is~ues. The trial court considered the mitigating factors individually and cumulatively and found that they were insufficiently substantial ¶7 to call for leniency. To establish the pecuniary gain aggravating circumstance the state must prove beyond a reasonable doubt that receiving something of value was a motive, merely the result. 146, ¶8 153 cause or impetus [for the murder] and not State v. Spencer, 176 Ariz. 36, 43, 859 P.2d (1993) The trial court based its finding of pecuniary gain on the 3 facts that: 1) Anne Costello testified that Harrod told hen toat Hap Tovrea, Jeanne s stepson, wanted Jeanne dead so that he and his siblings could access their inheritance; 2) Anne Costello testified that Harrod told her he would receive $100,000 for the murder and had complained to her that he had not yet received the total amount; and 3) the State introduced evidence of wire transfers and checks from Hap to Harrod totaling approximately $35,000. ¶9 Harrod countered Anne s testimony, in part, by suggesting that Anne lied because she was biased against Harrod. On cross examination, Anne admitted that she did not tell the police about Harrod s possible involvement in the murder until after she divorced Harrod. Harrod testified that Hap paid him for consulting services. Additionally, Harrod presented a witness who corroborated that Harrod and Hap were involved in a business venture together. ¶10 We cannot conclude, beyond a reasonable doubt, that a reasonable jury hearing the same evidence as did the judge would have assessed the witnesses credibility and testimony similarly or would have given the same weight to the mitigating factors. III. ¶11 II For the foregoing reasons, we cannot conclude that the Ring error was harmless in this case. Accordingly, we vacate Harrod s death sentence and remand for resentencing under A.R.S. sections 13 703 and 13-703.01 (Supp. 2002) 4 Ruth V. McGregor, Vice Chief Justice CONCURRING: Rebecca White Berch Michael D. Jones, Ryan Chief Justice, ¶12 specially concurring I concur in the result. On the question whether harmless error analysis is appropriate in the case before us, Ring, An:, at ¶91 105 15, P.3d at (2003) see State v. (Feldman, J., concurring in part and dissenting in part) Charles S. 5 Jones, Chief Justice
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