August  2001





Arizona  vs  Harrod




Supreme Court of Arizona


             This is a murder for hire case.  Ed Tovrea, Sr., left a sizable estate to his wife, Jeanne Tovrea, in trust, to be split among Ed’s three children, including Ed Tovrea, Jr., a.k.a. “Hap,”   Harrod entered Jeanne’s home and shot her while she was in bed.  Harrod was convicted and sentenced to death, with an automatic appeal to the Supreme Court of Arizona.  Many issues were raised on appeal, only two of which will be addressed here.  The defense argued that Harrod’s ex-wife, Anne Costello’s testimony should not be allowed because of bitterness over the divorce.  But, in response to the question why she left him, she stated, “I left him because I couldn’t live with him because of this terrible thing that he had done, because I couldn’t stand the fact that I was living with someone that could be involved with a murder.”  The court ruled that admitting this statement was not error because Harrod had opened the door, and it was not opinion evidence.


            The trial court did not allow Anne Costello to testify about communications between them because they were protected by the marital communication privilege.  The court did, however, permit Anne Costello to testify to everything she “observed, overheard or did with [the] defendant in relation to this case.


            Harrod challenges this ruling arguing that certain of his acts were intended as confidential communications.  The anti-marital fact privilege, which allows one spouse to prevent the other from testifying, terminates when the marriage is dissolved.  The marital communications privilege protects confidential communications made between spouses while they are married and it survives the marriage.  Anne Costello’s testimony on direct examination was limited to non-communicative acts she observed.  There was no error.