Honorable Steven Douglas Sheldon, Judge No. CR1991-090926 (A)
Independent Review of Capital Sentence SENTENCE AFFIRMED
Brnovich, Arizona Attorney General, Dominic E. Draye,
Solicitor General, Lacey Stover Gard, Chief Counsel, Capital
Litigation Section, John Pressley Todd (argued), Special
Assistant Attorney General, Phoenix, Attorneys for State of
Sands, Federal Public Defender, District of Arizona, Paula K.
Harms (argued), Assistant Federal Public Defender, Phoenix,
Attorneys for Charles Michael Hedlund
JUSTICE BOLICK authored the opinion of the Court, in which
CHIEF JUSTICE BALES, VICE CHIEF JUSTICE BRUTINEL, and
JUSTICES PELANDER, TIMMER, and GOULD joined.
The Ninth Circuit Court of Appeals found error in this
Court's independent review of Charles Michael
Hedlund's death sentence and remanded the case to the
federal district court with instructions to grant the writ of
habeas corpus unless the State stipulates to have the death
sentence vacated. We granted the State's motion to
conduct a new independent review and now affirm Hedlund's
In 1992, a jury found Hedlund guilty of first degree murder
for killing Jim McClain and second degree murder for killing
Christine Mertens. State v. McKinney, 185 Ariz. 567,
571 (1996) (reviewing factual and procedural history in a
consolidated case involving Hedlund). Both killings occurred
during a burglary spree committed by Hedlund and his
half-brother and co-defendant, James McKinney. The trial
judge found two aggravating factors concerning the first
degree murder: (1) Hedlund was previously convicted of a
serious offense; and (2) he committed the murder for
pecuniary gain. See A.R.S. § 13-751(F)(2),
(F)(5). After hearing the mitigating evidence, the
trial judge sentenced Hedlund to death. On appeal, this Court
struck the first aggravating factor but affirmed
Hedlund's death sentence because it found the mitigating
evidence was not "sufficiently substantial to call for
leniency" in light of the pecuniary gain aggravator.
McKinney, 185 Ariz. at 580-84.
Hedlund filed a petition for post-conviction relief
("PCR"), which the trial court denied, and this
Court denied his subsequent petition for review. In 2003,
Hedlund filed a petition for a writ of habeas corpus in the
United States District Court for the District of Arizona as
well as a motion to expand the evidentiary record, which was
denied. The district court ruled that Hedlund was not
entitled to habeas relief. In 2017, the Ninth Circuit
reversed, concluding that habeas relief was warranted because
this Court had erred in its independent review of the death
sentence when considering Hedlund's mitigation evidence.
Hedlund v. Ryan, 854 F.3d 557, 587 (9th Cir. 2017).
The Ninth Circuit reasoned that this Court's application
of the "unconstitutional causal nexus test"
constituted error under Eddings v. Oklahoma, 455
U.S. 104 (1982), and this "error 'had [a]
substantial and injurious effect' on the sentencing
decision." Hedlund, 854 F.3d at 586-87 (quoting
Brecht v. Abrahamson, 507 U.S. 619, 623 (1993)).
Consistent with State v. Styers, 227 Ariz. 186, 187
¶ 5 (2011), we granted the State's motion to conduct
a new independent review. We have jurisdiction under article
6, section 5(6) of the Arizona Constitution and A.R.S.
§§ 13-755(A), 13-4031, and 13-4032(4).
Scope of Review
In granting the State's motion, we ordered the parties to
submit briefing on "[w]hether the proffered mitigation
is sufficiently substantial to warrant leniency in light of
the existing aggravation." This order reflects that our
new independent review is focused on correcting the
constitutional error identified by the Ninth Circuit. See
Styers, 227 Ariz. at 187-88 ¶¶ 4-7 (conducting
a new independent review in a procedurally similar case).
That is, our review is limited to considering the mitigating
factors without the causal nexus requirement and reweighing
them against the established aggravator.
Hedlund argues that this Court does not have jurisdiction to
conduct a new independent review because this is a non-final
case and instead asks us to remand this case to the trial
court for resentencing before a jury. We disagree and
reaffirm the scope of review and our holding in Styers.
Id. at 187 ¶ 5 (holding that a "case is final
when 'a judgment of conviction has been rendered, the
availability of appeal exhausted, and . . . a petition for
certiorari finally denied, '" and therefore does not
need to be remanded for a new resentencing proceeding under
Ring v. Arizona, 536 U.S. 584 (2002) (citation
Hedlund also asserts that the United States Supreme
Court's recent decision in Hurst v. Florida, 136
S.Ct. 616 (2016), requires that he be resentenced. However,
Hurst only held that a jury must find the facts that
support a death sentence - essentially reaffirming the rule
the Court articulated in Ring. Id. at 624; see
also id. at 621 (discussing Ring and stating
that a defendant has a "right to have a jury find the
facts behind his punishment"). These rules are reflected
in Arizona's current statutory scheme. A.R.S. §
We also reject Hedlund's argument that, because the Sixth
Amendment requires the entire weighing of evidence be done by
the jury, resentencing is required here. Although the United
States Supreme Court has held that the Sixth Amendment
requires that "the decision of issues of fact must be
fairly left to the jury," United States v.
Murdock, 290 U.S. 389, 394 (1933), overruled in part
on other grounds by Murphy v. Waterfront Comm'n of N.Y.
Harbor, 378 U.S. 52 (1964), the ultimate decision of
whether mitigation is substantial enough to warrant leniency
"is not a fact question to be decided based on the
weight of evidence, but rather is a sentencing decision to be
made by each juror based upon the juror's assessment of
the quality and significance of the mitigating evidence that
the juror has found to exist." State ex rel. Thomas
v. Granville (Baldwin), 211 Ariz. 468, 473 ¶ 21
(2005); cf. Blakely v. Washington, 542 U.S. 296, 303
(2004) ("[T]he 'statutory maximum' for
Apprendi purposes is the maximum sentence a judge
may impose solely on the basis of the facts reflected in
the jury verdict or admitted by the defendant."
(citing Ring, 536 U.S. at 602)). Therefore, the
Sixth Amendment does not require this Court to remand for
resentencing as the independent review here is not a
Finally, we decline Hedlund's invitation to include the
evidence newly developed in PCR and habeas proceedings as
part of our independent review. Section 13-755(C) establishes
our jurisdiction for independent review and provides that we
may "remand a case for further action if the trial
court erroneously excluded evidence or if the appellate
record does not adequately reflect the evidence
presented." Thus, § 13-755(C) indicates that
additional evidence should be admitted first in the trial
court rather than in this Court.
Further, although we reviewed evidence presented in habeas
proceedings in State v. Clabourne, the procedural
context was different. See 194 Ariz. 379 (1999). In
Clabourne, the independent review was from
resentencing in which the defendant presented evidence from
habeas proceedings and the sentencing court made findings
based on that evidence. See id. at 383 ¶ 11.
That is not the case here. Hedlund should seek additional PCR
if he believes the evidence he presented in the federal
habeas proceedings entitles him to it.
In 1996, this Court upheld Hedlund's death sentence,
specifically finding that the mitigating evidence was not
"sufficiently substantial to call for leniency."
McKinney, 185 Ariz. at 580-84. The Ninth Circuit
concluded that this Court failed to consider mitigating
evidence that was not causally related to Hedlund's
crimes. Hedlund, 854 F.3d at 583-87. Accordingly, we
here conduct a new independent review of the mitigation
evidence and balance it against the aggravator.
Hedlund has the burden of proving mitigation factors by a
preponderance of the evidence. State v. Jones, 188
Ariz. 388, 400 (1997). When he fails to do so, the asserted
mitigation is entitled to no weight. Id. at 400-01.
Hedlund argues that the mitigating evidence -"his
extremely abusive childhood, resulting alcohol abuse,
[post-traumatic stress disorder], and brain damage, minor
participation, remorse, and the plea agreement"-is
substantial enough to call for leniency when considered
against the sole remaining aggravator, pecuniary gain.
However, the aggravator here is especially strong, and
Hedlund's active complicity in the crimes is clear. We
agree with the well-supported trial court conclusion that
Hedlund was "consciously involved in an ongoing crime
spree to commit residential burglaries and intended to either
kill or beat any of the victims who might have been present
during these crimes."
Indeed, testimony at trial showed that Hedlund and McKinney
asked their peers if they "knew any houses [from which]
they could rob like a lot of money and stuff" when
planning the crime spree. And as this Court observed in
Hedlund's direct appeal, he stated that "anyone he
found would be beaten in the head." McKinney,
185 Ariz. at 571, 580. Consistent with that statement,
Hedlund indicated that if anyone was home during the Mertens
burglary "they [could] just sneak in, hit them over the
head, knock them out and then take the money." And
Hedlund targeted McClain because, based on a prior car sale
between them, Hedlund believed McClain had property that
would be easy to sell as well as money within the residence.
In fact, Hedlund's fingerprints were found on a briefcase
within McClain's home, which suggests that Hedlund
searched for valuable items. Finally, the evidence shows that
Hedlund intentionally armed himself, as demonstrated by his
acquisition of a new weapon for the McClain burglary, and
actively concealed stolen property and weapons taken during
that burglary. This evidence strongly established the
pecuniary gain aggravator, which our Court affirmed in 1996,
and the Ninth Circuit left undisturbed. Id. at
583-84 ("Clearly, the evidence of pecuniary gain as the
primary, if not sole, purpose of the murders is overwhelming
"When assessing the weight and quality of a mitigating
factor, we take into account how the mitigating factor
relates to the commission of the offense."
Styers, 227 Ariz. at 189 ¶ 12. Moreover,
although this Court will consider all mitigating evidence
presented without requiring a causal nexus between the
mitigating evidence and the crime, "we may consider the
failure to show such a connection as we assess 'the
quality and strength of the mitigation evidence,' and may
attribute less weight to the mitigating effect of a disorder
if the defendant fails to establish a relationship between
the disorder and the criminal conduct." Id.
(citations omitted). In such a review, this Court will
consider statutory mitigating evidence under § 13-751(G)
(formerly § 13-703(G)), in addition to non-statutory
mitigating factors. See § 13-751(G); State
v. Gallegos, 178 Ariz. 1, 17-18 (1994).
Expert mitigating testimony
Hedlund asserts that expert testimony he presented during
sentencing establishes substantial mitigating weight under
§ 13-751(G)(1). That statute provides for mitigation
when "[t]he defendant's capacity to appreciate the
wrongfulness of his conduct or to conform his conduct to the
requirements of law was significantly impaired, but not so
impaired as to constitute a defense to prosecution."
At the sentencing hearing, two mental health experts
testified for the defendant: Dr. Ronald Holler and Dr.
Charles Shaw. Dr. Holler met with Hedlund for a two-day
interview to evaluate Hedlund's "intellectual,
cognitive, neuropsychological, [and] emotional functioning as
related to his background with his family and other aspects
of his environment." Dr. Holler also based much of his
testimony on reports from other sources. Based on this
information, Dr. Holler concluded that because Hedlund
experienced emotional and physical abuse as a child, he
suffered from battered child disorder, post-traumatic stress
disorder ("PTSD"), and "intertwined disorders
of much consequence including alcohol dependence and a
Dr. Holler testified that Hedlund's "mental
impairments would significantly impair his capacity to
conform his conduct to the requirements of the law"
because Hedlund's relationship with his brother,
McKinney, "created an unusual or substantial duress in
his life" resulting from his desire for family. However,
on cross-examination, Dr. Holler also testified that it is
possible that Hedlund had sufficient mental acuity to conform
his behavior if, hypothetically, a police officer were
present during the burglary that resulted in McClain's
Based on a single interview, Dr. Shaw testified primarily
about Hedlund's relationship with alcohol, concluding
that Hedlund "suffer[ed] from alcohol dependence or
alcoholism." Dr. Shaw testified that individuals with
alcoholism can suffer "from perception, memory and
judgment problems even [when] not intoxicated," and he
had "encountered alcoholics who because of their
alcoholism have committed acts they never would have
committed but for the existence of alcoholism." Much of
Dr. Shaw's testimony was based on Hedlund's
self-reported use of alcohol, and Dr. Shaw could not state
with any certainty if and by how much Hedlund was intoxicated
on the night of the McClain burglary and murder. However, Dr.
Shaw's testimony established that even with alcohol in
his system, an individual would not "lose complete
awareness of what is moral" but it might affect judgment
regarding what is wrong under the law or what the individual
can "get away with." In addition,
"Hedlund's character witnesses testified that
Hedlund did not have a drinking problem, was not an
alcoholic, and that his level of consumption was far below
what Hedlund reported to the psychiatric experts."
McKinney, 185 Ariz. at 579; see also infra
Based on our independent analysis, we conclude, as did the
trial court, that the expert testimony had little credibility
or probative value. Though the dissent asserts that the
experts' opinions provide strong evidence of mitigation
because the State provided no expert testimony to rebut
Hedlund's experts, infra ¶ 52, rebuttal was
unnecessary as the State brought out key testimony during
cross-examination of Dr. Holler and Dr. Shaw that effectively
impeached their opinions and weighed against mitigation. We
are particularly persuaded by Dr. Holler's opinion that
Hedlund was capable of modifying his behavior if an officer
had been present and Dr. Shaw's opinion that Hedlund
remained aware of what was moral. This evidence undermines
Hedlund's and the dissent's view that he suffered
mental impairments that significantly impaired his capacity
to conform his conduct to what the law requires.
Additionally, the experts testified that Hedlund's mental
impairments result from his childhood neglect and abuse at
least a decade prior to the crimes. Just before the crime
spree, Hedlund had a responsible job and exhibited no violent
behavior; he acted lucidly in planning and executing the
crimes and in attempting to dispose of and hide the murder
weapon. The evidence does not support the conclusion that
Hedlund lacked the ability to conform his conduct to the
requirements of law.
The dissent asserts that State v. Stevens, 158 Ariz.
595 (1988), applies here and shows that we should give Dr.
Holler's testimony strong mitigating weight.
Infra ¶ 71. Because Stevens is
inapposite, we disagree. In Stevens, we gave strong
mitigating weight to expert testimony introduced by the
defendant because it showed "his ability to conform his
behavior [to] the requirements of the law were [sic] impaired
at that time." Stevens, 158 Ariz. at 599-600
(alteration in original). The dissent suggests that the
Stevens Court relied on the fact that the defendant
had a "mental disorder" that caused his diminished
capacity. Infra ¶ 54. However, this Court
actually concluded "Stevens' condition at the time
of the offense was a major and contributing cause of his
conduct" based primarily on the expert testimony that
the defendant's "actions were the result of his
heavy use of alcohol and drugs preceding his meeting with the
victims and a well-developed habit of acting out on socially
unacceptable impulses while under the influence of such
intoxicants." Stevens, 158 Ariz. at 599-600. In
contrast, the only evidence of Hedlund's alleged
intoxication during the McClain murder was his own
self-reporting to Dr. Shaw well after the murder; as such,
Stevens is distinguishable as it is unclear if
Hedlund was intoxicated during the commission of the crimes.
Even if Hedlund was intoxicated when he committed the McClain
burglary and murder, nothing in the record suggests alcohol
affected his ability to appreciate right from wrong or
conform his conduct to law, unlike the defendant in
Stevens. Infra ¶¶ 26-27.
In sum, the expert testimony and the record do not establish
that Hedlund could not appreciate right from wrong or conform
his conduct to the requirements of law. Accordingly, we give
the expert testimony regarding Hedlund's PTSD,
alcoholism, and depressive disorder slight mitigating weight.