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State v. Hedlund

Supreme Court of Arizona

December 10, 2018

State of Arizona, Appellee,
Charles Michael Hedlund, Appellant.

          The Honorable Steven Douglas Sheldon, Judge No. CR1991-090926 (A) Independent Review of Capital Sentence SENTENCE AFFIRMED

          Mark 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 Arizona

          Jon M. 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.



         ¶1 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 death sentence.


         ¶2 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).[1] 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.

         ¶3 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)).

         ¶4 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).


         I. Scope of Review

         ¶5 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.

         ¶6 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 omitted)).

         ¶7 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. § 13-752.

         ¶8 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 factfinding determination.

         ¶9 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.

         ¶10 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.

         II. Independent Review

         ¶11 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.

         ¶12 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.

         ¶13 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."

         ¶14 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 and inescapable.").

         ¶15 "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).

         A. Expert mitigating testimony

         ¶16 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." § 13-751(G)(1).

         ¶17 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 depressive disorder."

         ¶18 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 murder.

         ¶19 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 ¶¶ 26-27.

         ¶20 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.

         ¶21 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.

         ¶22 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.

         B. Other ...

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