SUPREME COURT OF ARIZONA
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-98-0289-AP
Appellee, )
) Maricopa County Superior
v. ) Court
) No. CR-95-09046
JAMES CORNELL HARROD, )
)
Appellant. ) SUPPLEMENTAL
) O P I N I O N
)
__________________________________)
Appeal from the Superior Court of Maricopa County
No. CR-95-09046
Honorable Ronald S. Reinstein, Judge
REMANDED FOR RESENTENCING
________________________________________________________________
Janet Napolitano, Attorney General Phoenix
by Kent E. Cattani, Chief Counsel,
Capital Litigation Section
and Robert L. Ellman, Assistant Attorney General
and James P. Beene, Assistant Attorney General
and John P. Todd, Assistant Attorney General
and Bruce M. Ferg, Assistant Attorney General Tucson
Attorneys for State of Arizona
James J. Haas, Maricopa County Public Defender Phoenix
by Christopher V. Johns, Deputy Public Defender
and James H. Kemper, Deputy Public Defender
Attorneys for James Cornell Harrod
_________________________________________________________________
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 (2001).
¶2 This court issued an opinion affirming Harrod’s conviction
and death sentence. State v. Harrod, 200 Ariz. 309, 26 P.3d 492
(2001). The United States Supreme Court vacated the judgment and
remanded for further consideration in light of Ring v. Arizona, 536
U.S. 584, 122 S. Ct. 2428 (2002) (Ring II). Harrod v. Arizona, __
U.S. __, 122 S. Ct. 2653 (2002) (mem.). 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.
¶3 In Ring II, the United States Supreme Court held that
Arizona’s former capital sentencing scheme1 violates the right to a
jury trial guaranteed by the Sixth Amendment to the United States
Constitution. Ring II, 536 U.S. at __, 122 S. Ct. at 2443. The Court
declared that “[c]apital defendants, no less than non-capital
defendants . . . are entitled to a jury determination of any fact
on which the legislature conditions an increase in their maximum
punishment.” Id. at __, 122 S. Ct. at 2432. The Court reversed our
decision in State v. Ring, 200 Ariz. 267, 25 P.3d 1139 (2001) (Ring
I), and remanded for further proceedings consistent with its decision.
Ring II, 536 U.S. at __, 122 S. Ct. at 2443.
¶4 Following the Supreme Court’s Ring II decision, we
consolidated all death penalty cases in which this court had not yet
1
The legislature has since amended A.R.S. § 13-703. See
2002 Ariz. Sess. Laws, 5th Spec. Sess., ch. 1, § 1.
2
issued a direct appeal mandate to determine whether Ring II requires
this court to reverse or vacate the defendants’ death sentences.
In State v. Ring, __ Ariz. __, __ ¶ 53, __ P.3d __, __ (2003) (Ring
III), we held that we will examine a death sentence imposed under
Arizona’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 issues. The trial court considered the mitigating factors
individually and cumulatively and found that they were insufficiently
substantial to call for leniency.
¶7 To establish the pecuniary gain aggravating circumstance
the state must prove beyond a reasonable doubt that receiving something
of value was “a motive, cause or impetus [for the murder] and not
merely the result.” State v. Spencer, 176 Ariz. 36, 43, 859 P.2d
146, 153 (1993).
¶8 The trial court based its finding of pecuniary gain on the
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facts that: 1) Anne Costello testified that Harrod told her that
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 For the foregoing reasons, we cannot conclude that the Ring
II 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).
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___________________________________
Ruth V. McGregor, Vice Chief Justice
CONCURRING:
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Rebecca White Berch
____________________________________
Michael D. Ryan
Jones, Chief Justice, specially concurring
¶12 I concur in the result. On the question whether harmless
error analysis is appropriate in the case before us, see State v.
Ring, __ Ariz. at __ ¶¶ 105-15, __ P.3d at __ (2003) (Feldman, J.,
concurring in part and dissenting in part).
________________________________
Charles E. Jones, Chief Justice
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