State v. Harrod

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-05-0461-AP
Appellee, )
) Maricopa County
v. ) Superior Court
) No. CR1995-009046
JAMES CORNELL HARROD, )
)
Appellant. )
) O P I N I O N
_________________________________ )

Appeal from the Superior Court in Maricopa County
The Honorable Ronald S. Reinstein, Judge (Retired)
The Honorable Brian R. Hauser, Judge

AFFIRMED AS MODIFIED
________________________________________________________________

TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Chief Counsel,
Captital Litigation Section
Robert J. Gorman, Jr., Tucson
Assistant Attorney General
Attorneys for the State of Arizona

Michael J. Dew Phoenix
Attorney for James Cornell Harrod
________________________________________________________________

R Y A N, 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

1
We view the facts in the “light most favorable to
sustaining the verdict.” State v. Tucker (Tucker I), 205 Ariz.
157, 160 n.1, ¶ 3, 68 P.3d 110, 113 n.1 (2003). A more detailed
account of the facts appears in State v. Harrod (Harrod I), 200
Ariz. 309, 311-12, ¶¶ 2-11, 26 P.3d 492, 494-95 (2001).
2
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.

2
Several of Harrod’s friends testified that he had
repeatedly told them that he had been in Vietnam. Harrod later
admitted lying about his service.
3
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

3
Harrod and Anne Costello divorced between the time of the
murder and the time she spoke to police.
4
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 (2002), vacated the judgment and remanded

the case for further consideration in light of Ring v. Arizona

(Ring II), 536 U.S. 584 (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

5
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.

6
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

4
See, e.g., State v. Richmond, 180 Ariz. 573, 580 n.8, 886
P.2d 1329, 1336 n.8 (1994) (noting that the law of the case
doctrine normally “prevents a court from reconsidering issues of
law previously decided”), abrogated on other grounds, State v.
Mata, 185 Ariz. 319, 916 P.2d 1035 (1996).
5
The subsection letter and number of A.R.S. § 13-604(W)(4)
(Supp. 2007) were different at the time of this amendment.
Section 13-4062(1) (Supp. 2007) has likewise been amended to
correspond. See 2005 Ariz. Sess. Laws, ch. 188, § 8 (1st Reg.
Sess.); 2004 Ariz. Sess. Laws, ch. 29, § 4 (2d Reg. Sess.); 1999
Ariz. Sess Laws, ch. 261, § 42 (1st Reg. Sess.).
7
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:

8
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

testimony in the 1997 trial, we conclude that Harrod cannot

reassert the privilege in this proceeding. Accordingly, the

trial judge did not err in permitting the State to call Costello

as a witness. Our conclusion makes it unnecessary for us to

address Harrod’s claim that the superior court’s reliance on

amended A.R.S. § 13-4062(1) at his resentencing violated the Ex

Post Facto Clauses of the Federal and Arizona Constitutions.

III

¶17 Harrod next contends that the superior court erred in

allowing Ed Tovrea, Jr., to assert a blanket privilege against

self-incrimination to all questions concerning his business

operations and payments to Harrod. Harrod argues that his

intended questions would not have incriminated Tovrea and would

only establish the legitimacy of the Mineral Exploration Company

of the Americas, a company for which Ed Jr. served as President

and Harrod allegedly served as a consultant.

¶18 Several months before the resentencing proceeding, the

trial judge held a hearing regarding Tovrea’s assertion of his

Fifth Amendment privilege. Ed Jr. appeared at the hearing with

9
his attorney. Tovrea’s attorney advised the court that he had

consulted with his client regarding the questions proffered by

Harrod: “This morning I provided [the questions] to Mr. Tovrea.

We sat together. We reviewed all of the questions. We reviewed

all of the questions together.” Tovrea testified that based on

consultations with his attorney, he would invoke his Fifth

Amendment privilege and refuse to answer any of the questions.

He claimed that his answers to the questions would incriminate

him. The State confirmed that Ed Jr. remained a target of its

investigation into Jeanne Tovrea’s murder.

¶19 A trial court’s decision whether to allow a party to

call a witness before the jury who will assert his Fifth

Amendment privilege is reviewed for an abuse of discretion.

State v. Corrales, 138 Ariz. 583, 588-89, 676 P.2d 615, 620-21

(1983).

¶20 Defendants have a “right to offer the testimony of

witnesses, and to compel their attendance, if necessary,” in

order to present a defense. Washington v. Texas, 388 U.S. 14,

19 (1967). This right is guaranteed by the Sixth Amendment and

is incorporated in the Due Process Clause of the Fourteenth

Amendment. Id. at 17-19. But the right is not absolute. State

v. McDaniel, 136 Ariz. 188, 194, 665 P.2d 70, 76 (1983). “If

upon conducting an in camera hearing the trial judge determines

that a witness could legitimately refuse to answer essentially

10
all relevant questions, then that witness may be totally excused

without violating an individual’s Sixth Amendment right to

compulsory process.” Id.

¶21 This exception to a defendant’s Sixth Amendment right

to call a witness is narrow, however, and applies only “when the

trial judge has extensive knowledge of the case and rules that

the Fifth Amendment would be properly invoked in response to all

relevant questions that the party calling the witness plans on

asking.” Id. For a witness to properly invoke his Fifth

Amendment privilege, he must show a “reasonable ground to

apprehend danger to [himself] from his being compelled to

answer.” State v. Mills, 196 Ariz. 269, 276, ¶ 31, 995 P.2d

705, 712 (App. 1999) (quoting United States v. Melchor Moreno,

536 F.2d 1042, 1046 (5th Cir. 1976)). A trial court does not

necessarily have to personally question the witness, conduct a

hearing, or allow counsel to call the witness to the stand if

the court possesses “extensive knowledge of the case” such that

it can find that the witness can legitimately invoke the Fifth

Amendment to all relevant questions asked. Id.; accord State v.

Maldonado, 181 Ariz. 208, 210, 889 P.2d 1, 3 (App. 1994). A

judge possesses “extensive knowledge about the case” when the

judge has heard, for example, “the state’s entire case and a

portion of defendant’s.” State v. Rosas-Hernandez, 202 Ariz.

212, 217-18, ¶ 18, 42 P.3d 1177, 1182-83 (App. 2002).

11
¶22 Here, the trial judge told the parties that he was

quite familiar with the State’s theory of the case, which

implicated Ed Jr. in the murder, because he had presided over

Harrod’s 1997 trial, sentenced him to death, and presided over

hearings leading up to Harrod’s resentencing.6 Thus, the trial

judge clearly had the requisite “extensive knowledge of the

case.”

¶23 Because he was still a target of the State’s

investigation, Ed Jr. clearly demonstrated a “reasonable ground

to apprehend danger to [himself] from his being compelled to

answer.” Mills, 196 Ariz. at 276, ¶ 31, 995 P.2d at 712

(citation omitted). Consequently, we conclude that, under these

circumstances, the trial court did not abuse its discretion in

excusing Ed Jr. from testifying because he legitimately invoked

the Fifth Amendment privilege on the questions proffered by

Harrod.

IV

¶24 Nearly two years after this Court remanded this matter

for resentencing, and approximately one month before the trial

date, Harrod’s attorneys filed a “Motion for Rule 11

Prescreen[ing] To Determine Competency.” The judge denied the

6
Judge Ronald Reinstein, who presided over the 1997 trial,
was assigned to Harrod’s resentencing and ruled on most of the
pre-trial motions at issue in this appeal until he was
reassigned.
12
motion, observing that the sole basis for the motion was

Harrod’s lack of cooperation with respect to gathering

mitigation evidence, not his alleged incompetence.7

¶25 Harrod argues that the trial court lacked discretion

to deny his motion, under Arizona Rule of Criminal Procedure

11.2(a), for a pre-screening examination to determine whether he

was mentally competent to be resentenced. He contends that the

mandatory language in A.R.S. § 13-703.03(A) (Supp. 2007) and

Rule 11.2(a) obligates a trial court to order such an

examination in capital cases, even in a resentencing proceeding.

The State argues that the motion failed to allege that Harrod

was incompetent as defined in Rule 11.1 and that the trial court

had discretion whether to order a Rule 11 evaluation in a

resentencing proceeding.

¶26 Section 13-703.03(A) requires that “[i]f the state

files a notice of intent to seek the death penalty,” the trial

court must “appoint a psychologist or psychiatrist . . . to

conduct a prescreening evaluation to determine if reasonable

grounds exist to conduct another examination to determine . . .

7
In the motion, his attorneys acknowledged that Harrod was
“aware of the resentencing process under the current death
penalty statute, and . . . aware of the need for mitigation and
a thorough mitigation investigation”; however, because the
superior court would not permit Harrod to present evidence of
residual doubt as mitigation, Harrod declined to cooperate with
his attorneys “in gathering the type of information . . . to
constitute a thorough mitigation investigation.”
13
[t]he defendant’s competency to stand trial.” In addition, Rule

11.2(a) states that “[i]n a capital case, the court shall order

the defendant to undergo mental health examinations as required

under A.R.S. § . . . 13-703.03.”8 (Emphasis added.)

¶27 The State asserts that A.R.S. § 13-703.03 “only

mandates psychological testing in the pre-trial phase of capital

cases.” In this case, the State filed its notice that it would

seek the death penalty on October 3, 1995, well before the

adoption of A.R.S. § 13-703.03.

¶28 This Court has not yet interpreted the mandatory

language of A.R.S. § 13-703.03(A). In interpreting statutes, we

begin with the text of the statute. Mejak v. Granville, 212

Ariz. 555, 557, ¶ 8, 136 P.3d 874, 876 (2006). If the language

is clear and unambiguous, we need look no further. Id. Based

on the plain language of A.R.S. § 13-703.03(A), the mandatory

prescreening evaluation prescribed by the statute arguably

applies only to the pre-trial phase of a capital case, after the

prosecution has filed its notice to seek the death penalty.

Here, that notice was filed approximately six years before the

enactment of this statute. It does not appear, therefore, that

Harrod was entitled to a mandatory prescreening evaluation under

8
Rule 11.2(a) and A.R.S. § 13-703.02 also require that
capital defendants be screened for mental retardation as set
forth in A.R.S. § 13-703.02. But Harrod has never claimed he
has mental retardation and his Rule 11 motion did not allege he
needed to be examined for retardation.
14
either A.R.S. § 13-703.03 or Rule 11.2(a). For the following

reasons, however, we do not have to decide if § 13-703.03 and

Rule 11.2(a) apply to capital resentencings.

¶29 Even assuming that A.R.S. § 13-703.03(A) and Rule

11.2(a) mandate a prescreening evaluation in a capital

resentencing, any error here is harmless beyond a reasonable

doubt. See State v. Towery, 186 Ariz. 168, 185, 920 P.2d 290,

307 (1996) (citing State v. Bible, 175 Ariz. 549, 588, 600, 858

P.2d 1152, 1191, 1203 (1993)). The trial judge was quite

familiar with Harrod, having dealt with numerous pro se motions

that Harrod had previously filed, and having presided over his

trial in 1997 and the proceedings leading up to resentencing.

He denied Harrod’s motion because he found no reasonable cause

to believe that Harrod was incompetent.

¶30 Further, Harrod’s attorneys conceded that Harrod

understood the proceedings and various rulings that the trial

judge had made regarding the resentencing. They also conceded

that he understood the importance of and need for mitigation

evidence. Moreover, his attorneys told the court that “Mr.

Harrod apparently believes that proof of innocence is the only

form of mitigation that will succeed in sparing him from the

death penalty.”

¶31 As a result of this belief, Harrod refused to permit

his attorneys to present certain mitigation evidence;

15
specifically, he refused to allow his family members to testify

about his family life and background. On the last day of the

penalty phase of the resentencing, Harrod personally confirmed

to the trial judge that he was making a reasoned decision not to

call family members to testify because they either would be

cross-examined or would be limited in presenting residual doubt

evidence.

¶32 This Court has held that a defendant was competent

when

the record indicate[d] that [the] defendant was
articulate, aware of the proceedings, and
knowledgeable about the potential consequences of his
choices. On this record, we conclude that defendant
was competent when he chose not to cooperate with [the
mitigation specialist] and chose to expedite his
sentencing proceedings, despite the fact that his
decision may have limited the mitigation evidence
offered on his behalf.

State v. Kayer, 194 Ariz. 423, 436, ¶ 42, 984 P.2d 31, 44

(1999). Therefore, a defendant’s choice not to cooperate in

presenting mitigation evidence does not give rise to reasonable

grounds to grant a competency hearing. Id. at ¶¶ 41-42.

¶33 We therefore conclude that even if the trial judge

erred in denying the Rule 11 motion for a prescreening

examination, nothing in the record suggests that Harrod’s

decision not to cooperate with defense counsel was anything

other than a rational decision. Any error in not ordering an

16
evaluation under A.R.S. § 13-703.03(A) or Rule 11.2(a) was

harmless beyond a reasonable doubt.

V

¶34 Harrod next contends that the prosecutor committed

misconduct when he argued at the trial in 1997 that Harrod

assisted the shooter, and then changed his theory at the

resentencing and argued that Harrod actually murdered Jeanne.

¶35 Because Harrod’s counsel did not object to the State’s

resentencing closing argument, the allegation of misconduct is

reviewed for fundamental error. See State v. Roque, 213 Ariz.

193, 228, ¶ 154, 141 P.3d 368, 403 (2006). Once error has been

established,

[t]o prevail on a claim of prosecutorial misconduct, a
defendant must demonstrate that the prosecutor's
misconduct so infected the trial with unfairness as to
make the resulting conviction a denial of due process.
Reversal on the basis of prosecutorial misconduct
requires that the conduct be so pronounced and
persistent that it permeates the entire atmosphere of
the trial.

State v. Hughes, 193 Ariz. 72, 79, ¶ 26, 969 P.2d 1184, 1191

(1998) (internal quotation marks and citations omitted).

Prosecutors may “argue all reasonable inferences from the

evidence,” but cannot “make insinuations that are not supported

by the evidence.” Id. at 85, ¶ 59, 969 P.2d at 1197.

¶36 The State’s argument that Harrod murdered Jeanne was a

reasonable inference drawn from the evidence. Substantial

17
evidence supported the State’s theory. Harrod left his house on

the evening of March 31, 1988, dressed in camouflage pants, army

boots, and an army jacket and carrying a duffel bag. Anne

Costello testified that after Harrod left, she checked to see if

his weapons, including a .22 caliber pistol with a silencer were

in a cabinet drawer; they were not. Harrod’s fingerprints were

found on both sides of the windowpane and on the kitchen

counter, which was the entry point to the home. Although he

never admitted to Anne that he was the actual murderer, Harrod

did admit that he oversaw the murder and took jewelry and credit

cards from Jeanne Tovrea’s home and later buried them in the

desert. Harrod also admitted that he posed as Gordon Phillips

to interview Jeanne and contacted her several times before her

death. Telephone records and bank records show a connection

between Harrod and Ed Jr. that extended well beyond legitimate

business dealings. The prosecutor’s argument that Harrod had

actually shot and killed Jeanne was a reasonable inference from

the evidence. Therefore, the prosecutor did not commit

prosecutorial misconduct.

VI

¶37 Harrod argues that the superior court erred in

refusing to allow him to present residual doubt evidence during

the penalty phase of the sentencing proceeding. Specifically,

he wanted to present the results of a polygraph examination and

18
make statements of innocence during the penalty phase. Harrod

contends that the court’s ruling precluding such evidence

violated his constitutional right to present all relevant

mitigation evidence.9 He also claims that Arizona law expressly

permits residual doubt evidence as a mitigating factor at the

penalty phase under A.R.S. § 13-703(G) (Supp. 2007).

¶38 A trial court’s ruling on the admission of evidence in

the penalty phase is reviewed for an abuse of discretion. State

v. Garza, 216 Ariz. 56, 68, ¶ 56, 163 P.3d 1006, 1018 (2007),

cert. denied, ___ S. Ct. ___ (2008). All legal and

constitutional questions are reviewed de novo. State v. McGill,

213 Ariz. 147, 156, 159, ¶¶ 40, 53, 140 P.3d 930, 939, 942

(2006), cert. denied, 127 S. Ct. 1914 (2007).

¶39 In Oregon v. Guzek, the United States Supreme Court

stated that:

9
In Harrod I, this Court examined residual doubt in the
context of Harrod’s argument concerning the admissibility of a
polygraph examination and also in its independent review of the
death sentence. All five justices agreed that there was no
residual doubt as to Harrod’s guilt in the murder of Jeanne
Tovrea. Harrod I, 200 Ariz. at 317, 319, 320, 322, ¶¶ 39, 55,
67, 77, 26 P.3d at 500, 502, 503, 505. As a result, the
majority opinion did not resolve the question of whether
residual doubt can ever be used as a mitigating factor. Id. at
322, ¶ 77, 26 P.3d at 505 (Feldman, J., specially concurring).
Two justices, Justices Feldman and Zlaket, however, believed
that “residual doubt is a mitigating circumstance.” Id. at 323,
¶ 82, 26 P.3d at 506. But as discussed below, the law regarding
the admissibility of residual doubt evidence has changed since
Harrod I.
19
 . . . [T]he federal question before us is a narrow
one. Do the Eighth and Fourteenth Amendments grant
Guzek a constitutional right to present evidence of
the kind he seeks to introduce, namely new evidence
that shows he was not present at the scene of the
crime. That evidence is inconsistent with Guzek’s
prior conviction. It sheds no light on the manner in
which he committed the crime for which he has been
convicted. Nor is it evidence that Guzek contends was
unavailable to him at the time of the original trial
. . . . We can find nothing in the Eighth or
Fourteenth Amendments that provides a capital
defendant a right to introduce new evidence of this
kind at sentencing.

546 U.S. 517, 523 (2006). Three factors led the Court to

conclude that a trial court could exclude the type of residual

doubt evidence that Guzek wanted to assert. The Court held that

such evidence could be excluded because residual doubt evidence

concerns whether the defendant committed the crime, and

sentencing proceedings are concerned with how the defendant

committed the crime; the issue to which the evidence is relevant

had already been litigated; and Oregon law allowed a defendant

to admit any evidence at the resentencing proceeding that had

been admitted at Guzek’s first trial. Id. at 526.

¶40 Guzek resolved the issue of whether a death penalty

defendant has a constitutional right to present residual doubt

evidence in his sentencing proceeding: “We can find nothing in

the Eighth or Fourteenth Amendments that provides a capital

defendant a right to introduce new [residual doubt]

evidence . . . at sentencing.” Id. at 523; see also State v.

20
Tucker (Tucker II), 215 Ariz. 298, 318, ¶ 79, 160 P.3d 177, 197

(2007), cert. denied, 128 S. Ct. 296 (2007) (a defendant “does

not have an Eighth Amendment right to introduce [residual doubt]

evidence at the penalty phase”); State v. Andriano, 215 Ariz.

497, 506, ¶ 45, 161 P.3d 540, 549 (2007), cert. denied, 128 S.

Ct. 297 (2007) (“Both the United States Supreme Court and this

Court have rejected the argument that a capital defendant must

be allowed to present residual doubt evidence in mitigation.”);

State v. Ellison, 213 Ariz. 116, 136, ¶ 82, 140 P.3d 899, 919

(2006), cert. denied, 127 S. Ct. 506 (2006) (“[T]here is no

constitutional requirement that the sentencing proceeding jury

revisit the prior guilty verdict by considering evidence of

‘residual doubt.’”). Therefore, Harrod had no constitutional

right to present residual doubt evidence at his resentencing

proceeding.

¶41 Harrod also claims that A.R.S. § 13-703(G) permits

residual doubt evidence as a mitigating factor at the penalty

phase. Section 13-703(G) provides that “[t]he trier of fact

shall consider as mitigating circumstances any factors proffered

by the defendant or the state that are relevant in determining

whether to impose a sentence less than death, including any

aspect of the defendant’s character, propensities or record and

any of the circumstances of the offense.” (Emphasis added.)

21
Harrod contends that the emphasized language requires admission

of residual doubt evidence.

¶42 Despite the broad language in A.R.S. § 13-703(G), the

purpose of a capital sentencing is to shed light on factors such

as the egregious nature of the crime, the manner in which the

defendant committed the crime, and the defendant’s motivation.

See Guzek, 546 U.S. at 523, 526; see also State v. Anderson, 210

Ariz. 327, 348, ¶ 86, 111 P.3d 369, 390 (2005) (“The only issue

at the aggravation phase is whether any aggravating

circumstances have been proved; the only issue during the

penalty phase is whether death is the appropriate sentence.”).

¶43 Residual doubt evidence challenges a jury’s finding of

guilt. And because the penalty phase does not determine whether

a defendant is guilty, the “circumstances of the offense”

language in § 13-703(G) does not authorize a defendant to

present residual doubt evidence. Rather this language relates

to such factors, among others, as to how a defendant committed

first degree murder.

¶44 In addition, Arizona’s overall death penalty statutory

scheme prohibits a subsequent jury from retrying “the issue of

the defendant’s guilt.” See A.R.S. § 13-703.01(J)-(L) (Supp.

2007). The plain language of provisions J through L of section

13-703.01, as amended in 2002, makes residual doubt evidence

22
irrelevant to capital resentencing proceedings.10 2002 Ariz.

Sess. Laws, ch. 1, § 3 (5th Spec. Sess.). For example, section

13-703.01(J) states in part that:

At the aggravation phase, if the trier of fact is a
jury, [and] the jury is unable to reach a verdict on
any of the alleged aggravating circumstances and the
jury has not found that at least one of the alleged
aggravating circumstances has been proven, the court
shall dismiss the jury and shall impanel a new jury.
The new jury shall not retry the issue of the
defendant’s guilt . . . .

(Emphasis added.) Section 13-703.01(K) further declares:

At the penalty phase, if the trier of fact is a jury
and the jury is unable to reach a verdict, the court
shall dismiss the jury and shall impanel a new jury.
The new jury shall not retry the issue of the
defendant’s guilt . . . .

(Emphasis added.) Finally, A.R.S. § 13-703.01(L) states

the following:

If the jury that rendered a verdict of guilty is not
the jury first impaneled for the aggravation phase,
the jury impaneled in the aggravation phase shall not
retry the issue of the defendant's guilt. If the jury
impaneled in the aggravation phase is unable to reach
a verdict on any of the alleged aggravating
circumstances and the jury has not found that at least
one of the alleged aggravating circumstances has been
proven, the court shall dismiss the jury and shall
impanel a new jury. The new jury shall not retry the
issue of the defendant’s guilt . . . .

(Emphasis added.) Consequently, A.R.S. § 13-703.01(J)-(L)

precludes the introduction of residual doubt evidence at the

penalty phase.

10
Section 13-703.01(N) (Supp. 2007) requires that
resentencing occur under section 13-703.01.
23
¶45 Harrod argues that at least three post-Ring II Arizona

cases have explicitly recognized the right to present residual

doubt evidence at the penalty phase: State v. Lamar, 210 Ariz.

571, 576, ¶ 21, 115 P.3d 611, 616 (2005), State v. Nordstrom,

206 Ariz. 242, 247, ¶ 20, 77 P.3d 40, 45 (2003), and State v.

Jones, 205 Ariz. 445, 451, ¶ 25, 72 P.3d 1264, 1270 (2003). But

these cases do not support his argument. In all three cases, in

which this Court examined whether a judge-imposed death sentence

was harmless error under the criteria set forth in Ring III,

residual doubt was offered as a non-statutory mitigating factor,

but the trial judges never found the factor to be proven.

Lamar, 210 Ariz. at 576, ¶ 21, 115 P.3d at 616; Nordstrom, 206

Ariz. at 247, ¶ 20, 77 P.3d at 45; Jones, 205 Ariz. at 451, ¶

25, 72 P.3d at 1270. Although the opinions mention residual

doubt as a non-statutory mitigating factor, they neither discuss

nor approve of the presentation of residual doubt as a

mitigating factor in a Ring III resentencing. See Lamar, 210

Ariz. at 576, ¶ 21, 115 P.3d at 616; Nordstrom, 206 Ariz. at

247, ¶ 20, 77 P.3d at 45; Jones, 205 Ariz. at 451, ¶ 25, 72 P.3d

at 1270.

¶46 Accordingly, we hold that Harrod did not have a

constitutional or statutory right to present residual doubt

evidence at his resentencing proceeding. Thus, it was not error

for the trial court to rule that Harrod could not present

24
residual doubt evidence, including the results of a polygraph

examination and assertions of innocence during allocution.

VII

¶47 Harrod next claims that the penalty phase instructions

and form of verdict, taken as a whole, impermissibly created and

shifted the burden of proof, resulting in a “presumption of

death” in violation of State ex rel. Thomas v. Granville

(Baldwin), 211 Ariz. 468, 123 P.3d 662 (2005).

¶48 This Court reviews de novo whether penalty phase jury

instructions are correct statements of law. Id. at 471, ¶ 8,

123 P.3d at 665. If the defendant failed to object to the

incorrect jury instructions, they will be reviewed for

fundamental error. State v. Henderson, 210 Ariz. 561, 567, ¶

19, 115 P.3d 601, 607 (2005).

¶49 Harrod argues that the following instruction was

erroneous:

If no jurors find the defendant proved any mitigation
by a preponderance of the evidence, you must return a
verdict of death.

We recently rejected virtually the same argument regarding an

identical jury instruction. In Tucker II, we held that the

above instruction did not create an impermissible “‘presumption’

of death.” 215 Ariz. at 317, ¶ 73, 160 P.3d at 196. We

concluded that “[s]uch a directive does not violate the Eighth

Amendment so long as jurors are allowed to consider any

25
mitigating evidence.” Id. Here, several jury instructions

informed jurors that they could find mitigating factors from

anything presented during the resentencing proceeding.11 The

instructions in this case, as in Tucker II, also made clear in

several places that Harrod did not have the burden to establish

that the mitigating evidence was sufficiently substantial to

call for leniency.12 Therefore, the jury instructions here,

taken as a whole, did not create a “presumption of death.”

11
For example, on the issue of mitigation evidence that could
be considered, the jury was instructed that:

Mitigation includes anything offered by the defendant
or the state before or during this phase of the trial
helpful in determining whether to impose a sentence
less than death.

And:

You are not limited to these mitigating circumstances,
or any others suggested by the parties. You may also
consider any other information admitted as evidence
during the aggravation phase or the penalty phase that
is relevant in determining whether to impose a
sentence less than death so long as it relates to an
aspect of the defendant’s background, character,
propensities, record, or circumstances of the offense.
12
On the issue of whether the mitigation was sufficiently
substantial to call for leniency, the trial court instructed the
jury that:

Neither the state nor the defendant has the burden of
proving that the weight of the mitigation is or is not
sufficiently substantial to call for leniency. . . .
Each juror must determine for himself or herself what
is sufficiently substantial to call for leniency.
26
¶50 Harrod also argues that the verdict form improperly

stated “the mitigation proved by the defendant,” rather than

suggesting that mitigation could be found anywhere in the

record. The verdict form stated the following:

We the Jury, unanimously do not find with regard to
the First Degree murder of Jean Tovrea, the mitigation
proved by the defendant is sufficiently substantial to
call for leniency and return a verdict of death.

As discussed above, however, the superior court instructed the

jury that the jurors could find mitigation evidence in “anything

offered by the defendant or the state before or during this

phase of the trial,” and that they were not “limited to [the]

mitigating circumstances, or any other suggested by the parties.

You may also consider any other information admitted as evidence

during the aggravation phase or the penalty phase that is

relevant in determining whether to impose a sentence less than

death.” Given these instructions, although the verdict form

could have been more precisely worded, it did not create a

“presumption of death.”

¶51 Harrod further claims that it was error to suggest

that the jurors must vote for death if they found no mitigation

evidence. In Tucker II, this Court rejected such a claim:

“[u]nder our sentencing scheme, . . . a juror must vote to

impose a sentence of death if he or she determines there is no

mitigation at all or none sufficiently substantial to warrant a

27
sentence of less than death.” 215 Ariz. at 318, ¶ 74, 160 P.3d

at 197.

¶52 Harrod also complains about the trial court’s use of

the term “weighing” in the penalty phase jury instructions. He

concedes that although such language may be “insufficient for

reversal,” it “worsened the problem” when presented in

conjunction with language stating that Harrod must prove

mitigation. The weighing instructions provided to the jury in

this case included the following two passages:

You must make your decision about whether mitigation
is sufficiently substantial to call for leniency based
solely upon your weighing of any mitigation proven to
you and the aggravating circumstance you have already
found during the aggravation phase. To do this, you
must individually determine the nature and extent of
mitigating circumstances. Then, in light of the
aggravating circumstance that has been proven to
exist, you must individually determine if the totality
of the mitigating circumstances is sufficiently
substantial to call for leniency and a life sentence.

The weighing of aggravating and mitigating
circumstances does not mean a mere mechanical counting
of factors on each side of an imaginary scale, or the
arbitrary assignment of weights to any of them. You
are free to assign whatever value you deem appropriate
to each and all of the various factors you are
permitted to consider. In weighing the various
circumstances, you determine, under the relevant
evidence, which penalty is justified and appropriate
by considering the totality of the aggravating
circumstance with the totality of the mitigating
circumstances. In reaching a reasoned, moral judgment
about which penalty is justified and appropriate, you
must decide how compelling or persuasive the totality
of the mitigating factors is when compared against the
totality of the aggravating factor.

28
¶53 Baldwin discouraged jury instructions that used

“outweigh” language. 211 Ariz. at 473, ¶ 21, 123 P.3d at 667.

Tucker II, however, held that an instruction that directed “the

jury to ‘weigh’ mitigating and aggravating circumstances . . .

did not constitute fundamental error.” 215 Ariz. at 318, ¶ 75,

160 P.3d at 197. Because Harrod did not object to the court’s

instructions here, and the “weighing” instructions do not

constitute fundamental error, his argument fails. See State v.

Prince, 204 Ariz. 156, 158, ¶ 8, 61 P.3d 450, 452 (2003)

(concluding that when a defendant does not object to a jury

instruction, any complaint about the instruction is “waived,

except where fundamental error is involved”).

VIII

¶54 The Tovrea murder was committed before August 1, 2002;

we therefore are required to independently review the propriety

of the death sentence. A.R.S. § 13-703.04(A) (Supp. 2003).13 If

this Court determines that “an error was made regarding a

finding of aggravation or mitigation, the supreme court shall

independently determine if the mitigation the supreme court

finds is sufficiently substantial to warrant leniency in light

of the existing aggravation.” Id. § 13-703.04(B). If this

Court finds “that the mitigation is sufficiently substantial to

13
See 2002 Ariz. Sess. Laws, ch. 1, § 7(B) (5th Spec. Sess.).

29
warrant leniency, the supreme court shall impose a life sentence

. . . .” Id. Otherwise, we are required to affirm the death

sentence. Id.

A

¶55 The sole aggravating circumstance alleged by the State

was that Harrod “committed the offense as consideration for the

receipt, or in expectation of the receipt, of anything of

pecuniary value.” A.R.S. § 13-703(F)(5). “This factor is

satisfied only ‘if the expectation of pecuniary gain is a

motive, cause, or impetus for the murder and not merely a result

of the murder.’” State v. Armstrong, 208 Ariz. 360, 363, ¶ 7,

93 P.3d 1076, 1079 (2004) (quoting State v. Hyde, 186 Ariz. 252,

280, 921 P.2d 655, 683 (1996)).

¶56 Overwhelming evidence supports the (F)(5) aggravating

factor. As detailed above, see supra ¶¶ 2-7, the State

presented facts regarding the murder, which had every telltale

sign of a murder for hire. Because this evidence proves that

the motivation for the murder was financial gain, the pecuniary

gain aggravator was proven beyond a reasonable doubt.

B

¶57 Harrod presented the following non-statutory

mitigating factors: uncharged co-perpetrator; impact of

execution on defendant’s family and friends; lack of criminal

history; mental abuse by father during childhood; alcoholic

30
father; past good conduct and character; absence of other

violent acts; commission of the offense was out-of-character;

educational accomplishments; good behavior during pre-trial

incarceration; good behavior during post-sentencing

incarceration; good conduct during trial; love for and of

family; and divorced parents.

1

¶58 Harrod contends that the State’s failure to charge Ed

Tovrea, Jr., for his participation in the murder of Jeanne was a

mitigating factor. “This court occasionally will consider as a

mitigating circumstance the disparity between the sentences of a

defendant sentenced to death for a murder and that of an

accomplice or codefendant who received a lesser sentence.”

State v. Gallegos, 178 Ariz. 1, 20, 870 P.2d 1097, 1116 (1994)

(citing State v. Schurz, 176 Ariz. 46, 57, 859 P.2d 156, 167

(1993)). But this mitigating circumstance “has no application

when insufficient evidence exists to charge the other party with

the alleged crime.” Id. Although some circumstantial evidence

seems to point to Ed Jr.’s involvement in Jeanne’s murder, the

State apparently has concluded that it does not have sufficient

admissible evidence to proceed against him. Cf. Ariz. R. Sup.

Ct. 42, ER 3.8. Therefore, the fact that Ed Jr. has not been

charged is not a mitigating factor. Gallegos, 170 Ariz. at 20,

870 P.2d at 1116.

31
 2

¶59 Harrod cites as mitigating evidence the impact of

execution on his family and friends and love for and of family.

This Court, however, gives minimal weight to family support.

Harrod I, 200 Ariz. at 319, ¶ 54, 26 P.3d at 502.

3

¶60 Harrod also presents as mitigating factors the divorce

of his parents, his father’s alcoholism, and his father’s mental

abuse. “A defendant is not required to show a nexus between the

crime and the mitigation evidence before such evidence can be

considered. Rather, the only burden is to meet the low

threshold of relevancy to the issue of providing ‘a basis for a

sentence less than death.’” Ellison, 213 Ariz. at 144, ¶ 132,

140 P.3d at 927 (citations omitted). But “the failure to

establish such a causal connection may be considered in

assessing the quality and strength of the mitigation evidence.”

State v. Newell, 212 Ariz. 389, 405, ¶ 82, 132 P.3d 833, 849

(2006), cert. denied, 127 S. Ct. 663 (2006). Harrod presented

no evidence linking his parents’ divorce, his father’s

alcoholism, and the mental abuse Harrod experienced to the

murder; we therefore give this mitigation evidence minimal

weight.

32
 4

¶61 Harrod also cites as mitigating circumstances his lack

of criminal history, past good conduct, absence of violent acts,

educational accomplishments, the fact that the commission of the

offense was out-of-character, and good conduct during trial.

Although good character can be a significant mitigating factor,

it deserves less weight in a case involving a murder planned in

advance.14 State v. Willoughby, 181 Ariz. 530, 549, 892 P.2d

1319, 1338 (1995) (weighing significant past good conduct and

good acts evidence against the (F)(5) aggravating factor).

¶62 Finally, Harrod has proven that his behavior was

excellent during both his pre-trial and post-sentencing

incarceration. This is not a mitigating circumstance, however,

because inmates are expected to behave well in prison. State v.

Finch, 202 Ariz. 410, 418, ¶ 41, 46 P.3d 421, 429 (2002).

C

¶63 In conducting our independent review of the propriety

of a death sentence, “we consider the quality and the strength,

not simply the number, of aggravating and mitigating factors.”

State v. Greene, 192 Ariz. 431, 443, ¶ 60, 967 P.2d 106, 118

14
Significant evidence showed that Harrod had posed as
“Gordon Phillips” to meet and interview Jeanne Tovrea in July of
the year before the murder. In addition, Anne Costello
testified that Harrod spoke of the murder months before it
happened.

33
(1998). This Court has found that the pecuniary gain

aggravating factor, particularly in the case of a contract

killing, is especially strong. Willoughby, 181 Ariz. at 549,

892 P.2d at 1338 (citing State v. Clark, 126 Ariz. 428, 437, 616

P.2d 888, 897 (1980) (Gordon, J., concurring) (arguing that

(F)(5) should apply only when the defendant is a hired killer)).

Accordingly, when a “hired hit” has taken place, the (F)(5)

aggravator has substantial weight.

¶64 In light of the compelling aggravating circumstance,

the mitigation evidence simply fails to rise to a level that

would call for leniency. Therefore, we affirm Harrod’s death

sentence. See A.R.S. § 13-703.04(B).

IX

¶65 Although neither party raises the issue, Harrod was

illegally sentenced to death by lethal injection. Section 13-

704(B) (2001) states that “[a] defendant who is sentenced to

death for an offense committed before November 23, 1992 shall

choose either lethal injection or lethal gas at least twenty

days before the execution date.” Because the murder here was

committed on March 31, 1988, Harrod must be given the choice

between lethal injection and lethal gas. This Court has the

power to correct an illegal sentence under A.R.S. § 13-4037(A)

(2001). See State v. Smith, 215 Ariz. 221, 230, ¶¶ 34-35, 159

P.3d 531, 540 (2007), cert. denied, 128 S. Ct. 466 (2007); see

34
also State v. Brewer, 170 Ariz. 486, 493-94, 826 P.2d 783, 790-

91 (1992) (discussing the Court’s duty to carefully review all

death sentences on direct appeal and correct illegal sentences).

We modify Harrod’s sentence to permit him to choose execution

either by lethal injection or lethal gas.

X

¶66 Finally, Harrod raises thirteen claims to avoid

preclusion in subsequent federal proceedings. He recognizes

that these claims have previously been rejected.

¶67 (1) The death penalty is per se cruel and unusual

punishment. This claim has been rejected by Gregg v. Georgia,

428 U.S. 153, 186-87 (1976); State v. Salazar, 173 Ariz. 399,

411, 844 P.2d 566, 578 (1992); and State v. Gillies, 135 Ariz.

500, 507, 662 P.2d 1007, 1014 (1983).

¶68 (2) Execution by lethal injection is cruel and unusual

punishment. We rejected this claim in State v. Hinchey, 181

Ariz. 307, 315, 890 P.2d 602, 610 (1995).

¶69 (3) The death statute is unconstitutional because it

fails to guide the sentencing jury. We rejected this claim in

State v. Greenway, 170 Ariz. 155, 164, 823 P.2d 22, 31 (1991).

¶70 (4) The death statute unconstitutionally fails to

require either cumulative consideration of multiple mitigating

factors or that the jury make specific findings as to each

mitigating factor. This claim has been rejected by State v.

35
Gulbrandson, 184 Ariz. 46, 69, 906 P.2d 579, 602 (1995); State

v. Ramirez, 178 Ariz. 116, 131, 871 P.2d 237, 252 (1994); and

State v. Fierro, 166 Ariz. 539, 551, 804 P.2d 72, 84 (1990).

¶71 (5) Arizona’s statutory scheme for considering

mitigating evidence is unconstitutional because it limits full

consideration of that evidence. We rejected this claim in State

v. Mata, 125 Ariz. 233, 242, 609 P.2d 48, 57 (1980).

¶72 (6) Arizona’s death statute insufficiently channels

the sentencer’s discretion in imposing the death sentence. We

rejected this claim in State v. West, 176 Ariz. 432, 454, 862

P.2d 192, 214 (1993), overruled on other grounds, State v.

Rodriguez, 192 Ariz. 58, 961 P.2d 1006 (1998); and Greenway, 170

Ariz. at 164, 823 P.2d at 33.

¶73 (7) Arizona’s death statute is unconstitutionally

defective because it fails to require the State to prove that

death is appropriate. This claim was rejected by Gulbrandson,

184 Ariz. at 72, 906 P.2d at 605.

¶74 (8) The prosecutor’s discretion to seek the death

penalty unconstitutionally lacks standards. This Court rejected

this argument in Salazar, 173 Ariz. at 411, 844 P.2d at 578.

¶75 (9) The Constitution requires a proportionality review

of a defendant’s death sentence. We rejected this claim in

Salazar, 173 Ariz. at 416, 844 P.2d at 583; and State v. Serna,

163 Ariz. 260, 269-70, 787 P.2d 1056, 1065-66 (1990).

36
¶76 (10) There is no meaningful distinction between

capital and non-capital cases. This argument was rejected in

Salazar, 173 Ariz. at 411, 844 P.2d at 578.

¶77 (11) Applying a death statute enacted after the

Supreme Court’s decision in Ring II violates the Ex Post Facto

Clauses of the Federal and Arizona Constitutions and A.R.S. § 1-

244. We rejected this claim in Ring III, 204 Ariz. at 545-47,

¶¶ 15-24, 65 P.3d at 926-28.

¶78 (12) The death penalty is cruel and unusual because it

is irrationally and arbitrarily imposed and serves no purpose

that is not adequately addressed by life in prison. This Court

rejected this claim in State v. Pandeli, 200 Ariz. 365, 382, ¶

88, 26 P.3d 1136, 1153 (2001), vacated on other grounds, Ring

II, 536 U.S. 584; and State v. Beaty, 158 Ariz. 232, 247, 762

P.2d 519, 534 (1988).

¶79 (13) To the extent this Court disagrees with Harrod’s

reading of Baldwin, Arizona’s death penalty statute is

unconstitutional because it requires imposition of the death

penalty whenever at least one aggravating circumstance and no

mitigating circumstances exist. This claim has been rejected by

Walton v. Arizona, 497 U.S. 639, 651-52 (1990), overruled on

other grounds, Ring II, 536 U.S. 584; State v. Miles, 186 Ariz.

10, 19, 918 P.2d 1028, 1037 (1996); and State v. Bolton, 182

Ariz. 290, 310, 896 P.2d 830, 850 (1995).

37
 XI

¶80 For the foregoing reasons, we affirm Harrod’s death

sentence as modified to comply with A.R.S. § 13-704(B).

_______________________________________
Michael D. Ryan, Justice

CONCURRING:

_______________________________________
Ruth V. McGregor, Chief Justice

_______________________________________
Rebecca White Berch, Vice Chief Justice

_______________________________________
W. Scott Bales, Justice

_______________________________________
John C. Gemmill, Chief Judge*

*Pursuant to Article 6, Section 3 of the Arizona Constitution,
the Honorable John C. Gemmill, Chief Judge of the Arizona Court
of Appeals, Division 1, was designated to sit in this matter.

38