                                 IN THE

    SUPREME COURT OF THE STATE OF ARIZONA

                           STATE OF ARIZONA,
                               Appellee,

                                    v.

                      CHARLES MICHAEL HEDLUND,
                              Appellant.


                            No. CR-93-0377-AP
                         Filed December 10, 2018


             The Honorable Steven Douglas Sheldon, Judge
                       No. CR1991-090926 (A)

                Independent Review of Capital Sentence
                       SENTENCE AFFIRMED



COUNSEL:

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
                           STATE V. HEDLUND
                           Opinion of the Court


JUSTICE BOLICK authored the opinion of the Court, in which CHIEF
JUSTICE BALES, VICE CHIEF JUSTICE BRUTINEL, and JUSTICES
PELANDER, TIMMER, and GOULD joined. JUDGE VÁSQUEZ* dissented.


JUSTICE BOLICK, opinion of the Court:

¶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.

                             BACKGROUND

¶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




* Justice John R. Lopez IV recused himself from this case. Pursuant to article
6, section 3 of the Arizona Constitution, the Honorable Garye L. Vásquez,
Vice Chief Judge of the Arizona Court of Appeals, Division Two, was
designated to sit in this matter.
1Section 13-703, the effective statute at the time of Hedlund’s crimes and
direct appeal, was renumbered as § 13-751 in 2008.



                                      2
                           STATE V. HEDLUND
                           Opinion of the Court


“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).

                               DISCUSSION

                            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



                                      3
                             STATE V. HEDLUND
                             Opinion of the Court


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



                                         4
                           STATE V. HEDLUND
                           Opinion of the Court


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




                                     5
                           STATE V. HEDLUND
                           Opinion of the Court


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).




                                      6
                           STATE V. HEDLUND
                           Opinion of the Court


      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



                                     7
                            STATE V. HEDLUND
                            Opinion of the Court


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




                                       8
                          STATE V. HEDLUND
                          Opinion of the Court


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 mitigating circumstances

¶23            Hedlund presents other mitigating evidence, namely his
emotionally and physically abusive childhood and dysfunctional family
life, intoxication, minor participation, remorse, and the rejected plea
agreement. We address the proffered mitigation evidence in turn.

             1. Emotionally and physically abusive childhood and
                dysfunctional family life

¶24         Testimony from Hedlund’s family and friends establish that
Hedlund experienced a very abusive childhood. He was neglected, beaten,
and punished for basic daily activities like eating and drinking water.
Moreover, his step-mother would frequently isolate Hedlund and punish
him because he was born out of wedlock. And Hedlund grew up in a
household where stealing was encouraged and rewarded.



                                     9
                           STATE V. HEDLUND
                           Opinion of the Court


¶25           Hedlund left the home around age thirteen, more than ten
years before the crimes, and no evidence shows that Hedlund’s difficult
childhood affected his ability to control his actions to conform with the law.
Hedlund’s feeling of responsibility “to hang around with his brother,
James, out of some twisted loyalty to the only family he knows”—as Dr.
Holler suggested—does not amount to an inability to control his actions.
Thus, despite the terrible conditions in which Hedlund was raised, we
assign this evidence little weight because there is neither temporal
proximity nor any demonstration that the conditions rendered Hedlund
unable to differentiate right from wrong or to control his actions. Supra
¶¶ 16–22; see, e.g., State v. Burns, 237 Ariz. 1, 34–35 ¶¶ 169–71 (2015)
(affirming a death sentence despite a “difficult childhood” and
“dysfunctional family”); State v. Bocharski, 218 Ariz. 476, 499 ¶ 111 (2008)
(“Also, Bocharski committed this offense when he was thirty-three years
old, lessening the relevance of abuse and neglect that occurred during his
childhood.”).

              2. Intoxication

¶26           Hedlund argues that his intoxication at the time of the murder
was a mitigating factor. We consider this evidence as both a statutory
mitigating circumstance under § 13-751(G)(1) and a non-statutory
mitigating factor. We find little credibility in Hedlund’s self-reporting
because he had a motive to lie and evidence presented at trial proved he
had been untruthful. Moreover, witness testimony contradicts Hedlund’s
assertion that his behavior was affected by intoxication. In fact, Hedlund’s
own witnesses testified that his drinking habits did not interfere with his
work and that he did not get violent when drinking, but instead became
drowsy.

¶27           The methodical and obviously deliberate commission of the
crime and his subsequent conduct in attempting to sell his gun the day after
the McClain murder strongly suggest Hedlund was in possession of his
faculties and not so impaired by alcohol as to constitute significant
mitigation. Cf. Bocharski, 218 Ariz. at 499 ¶ 111 (“First, Bocharski’s actions
immediately following the crime constituted purposeful steps to avoid
prosecution and therefore his claim of alcohol impairment is diminished.”).
Thus, we do not find sufficient reliable, credible evidence to satisfy




                                     10
                          STATE V. HEDLUND
                          Opinion of the Court


statutory mitigation under § 13-751(G)(1), and we give intoxication at the
time of the murder little weight as a non-statutory mitigating factor.

             3. Minor participation

¶28           Hedlund also presents his supposed minor participation as a
mitigating factor based on witness testimony—by Chris Morris and Joe
Lemon, two individuals who had participated in other burglaries during
the crime spree—that he was only involved in the burglary as the driver
and that the murder is inconsistent with his character. However, his claim
of minor participation is contradicted by the jury finding him guilty of
premeditated murder in a special verdict, which necessarily requires that
Hedlund was a major participant. See State v. Hoskins, 199 Ariz. 127, 150
¶ 100 (2000) (rejecting defendant’s argument that he was a minor
participant because the jury found that he committed premeditated murder
and thus concluded that defendant was a major participant in the murder
beyond a reasonable doubt). Moreover, we previously stated that “there is
ample evidence pointing to Hedlund as the one who killed Jim McClain.”
McKinney, 185 Ariz. at 580. We therefore give no mitigation weight to this
argument.

             4. Remorse

¶29          Hedlund further offers his expressions of remorse as
mitigating evidence. See Bocharski, 218 Ariz. at 498 ¶ 107. While Hedlund
expressed remorse to his mitigation specialist for the victim’s family, he




                                      11
                           STATE V. HEDLUND
                           Opinion of the Court


continues to maintain that he was not involved in the murder. At the
sentencing hearing, Hedlund made this statement:

      I don’t see how anybody could not have [remorse for this]. I
      can’t imagine going through what these families have been
      through. . . .
               I met Mr. McClain on several different occasions.
      There’s no way I could have done what happened to this man
      or let it happen if I would have known it was going to happen.
      There is no way I could have personally done that.
               ....
               . . . I personally did make some bad decisions when I
      first started hanging around with James [McKinney]. And,
      it’s [sic] resulted in a good portion of this, yes. But I wasn’t, I
      wasn’t actually involved in hurting anybody, not directly.

Hedlund’s continued evasions undercut the sincerity of his expressions of
remorse.

             5. Plea agreements

¶30            Hedlund also presents two plea agreements as mitigating
evidence. The trial court rejected the first plea agreement requiring
Hedlund to plead guilty to second degree murder and class 4 theft as the
court concluded that the plea agreement did not require Hedlund to take
sufficient responsibility for the McClain murder. The trial court recounted
that “given the pending charges, the evidence and arguments that had
previously been presented to the Court at that time and now, that such a
disposition offered in the plea agreement was totally unwarranted in the
interests of justice.” We have considered the existence of the plea
agreement and the extent to which it demonstrates the State’s belief that
Hedlund does not deserve the death penalty. We conclude it offers little
mitigating weight. Cf. State v. Miller, 186 Ariz. 314, 326, 328 (1996)
(affirming defendant’s death penalty despite the presence of a plea
agreement offer for a life sentence that the defendant rejected).

¶31        Plea offers can be made for reasons that have nothing to do
with whether a prosecutor believes the defendant deserves the death
penalty. For example, a prosecutor might offer a plea because of a



                                      12
                             STATE V. HEDLUND
                             Opinion of the Court


perceived weakness in the case or in an attempt to “turn” the defendant
into a state witness. In addition, a court has discretion to accept or reject
plea offers to facilitate the fair administration of justice. See State v. Lee, 191
Ariz. 542, 544 ¶¶ 6–7 (1998) (citing Ariz. R. Crim. P. 17.4(d)). Thus, the first
plea agreement Hedlund presents is entitled to only slight mitigating
weight.

¶32           Hedlund and the dissent assert that a purported second plea
agreement should be given substantial mitigating weight, suggesting that
had it been timely submitted to the trial court by trial counsel, it would have
been accepted. Infra ¶¶ 58–59. Neither Hedlund nor the dissent provide
any evidence supporting this assertion. Nothing in the record shows that a
second plea agreement was ever formally submitted to the trial court.
Moreover, even if the purported second plea agreement had been
submitted to the trial court for consideration, nothing indicates the court
would have accepted it. As the Ninth Circuit observed, it is likely that the
trial judge would have rejected the purported second agreement given that
it only added a plea to a burglary count on top of the pleas to second degree
murder and theft from the first plea agreement. Hedlund, 854 F.3d at 579.
Because the trial court had previously indicated it wanted Hedlund to take
more responsibility for McClain’s murder, the mere addition of a burglary
count likely would not have persuaded the court to accept the plea
agreement.

¶33           As such, we give this mitigating evidence some weight but do
not consider it substantial.

       C. Leniency is not warranted

¶34            In our independent review, we must consider the aggravator,
pecuniary gain, and all mitigating evidence presented to determine
whether the mitigation evidence individually or cumulatively is
sufficiently substantial to call for leniency. Here, we believe that the (F)(5)
aggravator is especially strong given that financial gain motivated a string
of burglaries, in which the possibility of murders was expressly
contemplated, culminating in the shooting of McClain in the back of the
head while he slept. In fact, Hedlund was aware that McKinney, before
holding Mertens face down and shooting her in the back of the head, had
“[b]eaten and savagely stabbed” her, and she had futilely “struggled to save



                                        13
                           STATE V. HEDLUND
                           Opinion of the Court


her own life.” McKinney, 185 Ariz. at 572. Despite that knowledge,
Hedlund willingly planned and actively participated in the McClain
burglary and murder less than two weeks later. Id. And Hedlund’s only
motive in shooting McClain was to facilitate the burglary—it was not
merely the unintended result of a burglary gone awry. See State v. Spears,
184 Ariz. 277, 295 (1996) (finding sole aggravator of pecuniary gain was
particularly strong given that “it was the only motive” for the murder and
not simply a “robbery gone awry which result[ed] in a death”). Indeed, we
previously stated that “pecuniary gain [w]as the primary, if not sole,
purpose of the murders,” McKinney, 185 Ariz. at 583–84, and that issue is
not properly before us in this limited review.

¶35            The dissent takes issue with the weight we give the pecuniary
gain aggravator because it contends “there is no evidence which brother
shot McClain.” Infra ¶ 67. The record says otherwise. Hedlund brought
his gun to McClain’s home the night of McClain’s murder; Hedlund sawed
off the gun to better conceal it prior to the McClain burglary; the bullet that
killed McClain was not inconsistent with Hedlund’s gun; Hedlund sought
to sell his gun the day after McClain’s murder; Hedlund concealed the gun
after McClain’s murder; Hedlund’s fingerprints were found on the gun’s
magazine when it was seized by police; and forensic testing indicated there
was blood on Hedlund’s gun. This evidence also buttresses the jury’s
finding that Hedlund was a major participant in McClain’s murder,
supra ¶ 28, a point the dissent concedes, infra ¶ 59 n.4. In fact, this Court
previously concluded there was “ample evidence” that Hedlund killed
McClain, McKinney, 185 Ariz. at 580, an issue that is not before us.

¶36           The dissent also suggests that the murders were not
motivated by pecuniary gain as Hedlund “took only some ‘wheat pennies’”
from an earlier burglary in which approximately $5.00 was stolen. Infra
¶ 65. The dissent’s assertion is factually inaccurate; Hedlund received half
the proceeds from the Mertens burglary and also took property from the
McClain burglary, including a car and three guns. Further, the poor results
of one burglary within the crime spree do not negate the fact that the
burglary that resulted in McClain’s murder was motivated by pecuniary
gain. See State v. Lynch, 225 Ariz. 27, 40 ¶ 73 (2010) (“[T]he [pecuniary gain]
aggravator requires only that the desire for pecuniary gain motivated the
murder.”).




                                      14
                           STATE V. HEDLUND
                           Opinion of the Court


¶37            Hedlund and the dissent assert that this case is factually
similar to Bocharski, where we reduced the defendant’s death sentence to a
life sentence. 218 Ariz. at 499 ¶¶ 112–13. However, Bocharski is materially
distinguishable. Bocharski presented seven mitigating factors including:
“(1) A.R.S. § 13-703.G.1 (state of mind), (2) physical, mental, and sexual
abuse of the defendant, (3) history of substance abuse and alcoholism,
(4) dysfunctional family of origin including multigenerational violence,
criminality, and substance, sexual, emotional, and physical abuse,
(5) abandonment, severe neglect, starvation, and foster care placement,
(6) impact of execution on the defendant’s family, and (7) remorse.” Id. at
495–96 ¶ 94. Although we specifically discounted the mitigating evidence
of abuse, neglect, and alcohol impairment, id. at 499 ¶ 111, we ultimately
found leniency was appropriate because we found substantial evidence of
mitigation, while the sole aggravator, age of the victim, was “not
particularly strong,” id. ¶ 112. Indeed, the dissent’s reliance on the evidence
of the childhood abuse in Bocharski as establishing that Hedlund has shown
substantial mitigation is misplaced as Bocharski specifically discounted
evidence of childhood abuse as attenuated. Id. ¶ 111 (“Also, Bocharski
committed this offense when he was thirty-three years old, lessening the
relevance of abuse and neglect that occurred during his childhood.”).
Although the dissent argues this case is like Bocharski because “Hedlund’s
childhood abuse is ‘unique in its depth and breadth,’” infra ¶ 53, it was not
the “depth and breadth” of the history of childhood abuse in Bocharski that
led this Court to grant leniency; rather, the defendant’s “mitigation
evidence was unique in its depth and breadth” as a whole while the
aggravator was “not particularly strong.” Id. at 498–99 ¶¶ 109–11. In
contrast, here the aggravating factor of pecuniary gain is particularly strong
while the mitigation evidence is not substantial.

¶38           State v. Graham, 135 Ariz. 209, 213 (1983), in which we
determined that leniency was appropriate, is also distinguishable. We
found that mitigating evidence of (1) impaired capacity, (2) lack of prior
criminal history, and (3) Graham’s age of twenty-one years old (although
given little weight) outweighed the sole aggravator of pecuniary gain. Id.
Our finding of impaired capacity was linked to credible expert testimony.
Id. Indeed, the expert testimony showed Graham’s impaired capacity was
the product of drug abuse stemming from “legal and professional sanction”
that was not entirely of his own making. Id. Here, however, the expert



                                      15
                          STATE V. HEDLUND
                          Opinion of the Court


testimony in the trial court was not persuasive and nothing else in the
record indicates that Hedlund had impaired capacity, as discussed above.
Supra ¶¶ 16–22.

¶39          Having considered all mitigating evidence, we conclude that
the evidence presented is not sufficient to warrant leniency in light of the
commission of a murder for pecuniary gain. See State v. Harrod, 218 Ariz.
268, 284 ¶¶ 63–64 (2008) (affirming the defendant’s death sentence when
the sole aggravating factor, pecuniary gain, was weighed against the
mitigating evidence presented); State v. Roseberry, 210 Ariz. 360, 373–74
¶¶ 77–79 (2005) (same); Spears, 184 Ariz. at 295 (same).

                             CONCLUSION

¶40          We affirm Hedlund’s death sentence.




                                    16
                           STATE V. HEDLUND
                         JUDGE VÁSQUEZ, Dissenting


VASQUEZ, J., dissented.

¶41        At the State’s request, this Court has conducted an independent
review of Charles Michael Hedlund’s death sentence and today affirms that
sentence after concluding the mitigating evidence is not sufficiently
substantial to outweigh the single aggravating circumstance. Because I
disagree with this conclusion, I respectfully dissent. The death penalty is
reserved for “those who stand out from the norm of first degree
murderers.” State v. Spears, 184 Ariz. 277, 295 (1996) (quoting State v. Smith,
146 Ariz. 491, 505 (1985)). As explained in more detail below, Hedlund does
not meet this criterion.

                 Childhood Abuse and Expert Testimony

¶42        Although the majority characterizes Hedlund’s childhood abuse
and neglect as “very abusive,” supra ¶ 24, it was nothing short of horrific.
When he lived with his biological mother and stepfather, McKinney Sr.,
until the age of six or seven, he and his siblings were subjected to extreme
neglect. They ate only if they were able to get food themselves, and, when
they did, it was often moldy and rotten. They were rarely clothed and,
when they were, it was in “filth-encrusted clothes.” They lived and slept
surrounded by animal feces and urine. Hedlund’s mother “would stack
used [feminine hygiene products] around rooms in the house” and never
cleaned the children’s diapers. Mary Durand, a presentence report
investigator, described the conditions “as gruesome as anything that [she
had] come across in 25-plus years in this business.”

¶43         When the children moved in with McKinney Sr., their
stepmother, and her daughter, the neglect continued, with the addition of
severe physical and mental abuse. Hedlund, the oldest, was the only one
of his siblings to have a different father, and his stepmother would tell him
daily that “he was a bastard child” who “didn’t have a father.” The house
was “always dirty,” as were the children who often “smelled like animal
dung.” The McKinneys kept animals such as a goat and calf, chickens,
monkeys, and snakes inside the house. Even though the children were
terrified of snakes, their cage was kept inside the closet of the children’s




                                      17
                             STATE v. HEDLUND
                           JUDGE VÁSQUEZ, Dissenting


bedroom. If the children did not clean up the animals’ feces, it “didn’t get
cleaned up.”

¶44       The children were not allowed to have food unless approved by
their stepmother and were beaten if they ate or drank without her
permission. She also frequently locked them out of the house, typically
without adequate clothing and with no food or water for hours at a time
and in temperatures upward of 100 degrees.

¶45        Their stepmother, often with the help of her daughter, beat the
children daily with objects ranging from “belts with steel prongs” to “wire
hangers” and cooking pans. Hedlund, however, “got more beatings than
[the other children], because he wasn’t a McKinney.” Hedlund’s sister2
recalled that either their stepmother or her daughter would “hold
[Hedlund] down on the ground . . . [and] the other one would beat him.”
In one incident, McKinney Sr.’s dog attacked Hedlund, resulting in over
200 stitches to his face. The next morning, his stepmother woke Hedlund
and beat him for an hour “because it cost[] her money to take him to the
hospital.”      Additionally, whenever Hedlund’s half-brother and
co-defendant, James McKinney, would get into trouble, Hedlund would be
beaten as well because he “was the oldest and . . . should have known
better.”

¶46        A theme that pervades the family’s recollections of Hedlund as
a child was that he consistently tried to protect his siblings from the abuse
and would take their beatings for them. His sister recalled, “If we were
going to get a beating or slapped in the face or punched in the face,
[Hedlund] would jump in the middle and he would take the hit for us.”
During one instance, their stepmother grabbed McKinney by the wrist,
lifted him into the air, and began beating him with a piece of garden hose.
Hedlund “jumped on her arm and was begging her, ‘Momma, stop it.
Momma, stop it.’” The stepmother flung Hedlund onto the sidewalk,
where he hit the back of his head, and then hit him across the face with the
hose. Not only did he protect, or try to protect, his siblings from his


2   She is actually Hedlund’s half-sister.




                                        18
                          STATE v. HEDLUND
                        JUDGE VÁSQUEZ, Dissenting


stepmother’s abuse, he also tried to protect his sisters from McKinney, who
would often hit them with boards, shovels, and rakes.

¶47        Dr. Holler explained that Hedlund’s childhood abuse caused
lasting neuropsychological impairments, as reflected, in part, by a disparity
in his IQ scores. Hedlund’s verbal IQ—associated with the left side of the
brain—was 91, but his performance IQ—associated with the right side—
was 78. The low performance IQ is indicative of difficulty “using good
judgment and avoiding getting [oneself] into severe difficulties.”

¶48          According to Dr. Holler, Hedlund’s childhood experiences, in
particular the constant reminders that he was not fully biologically related
to his family, caused him to become “a very needy person psychologically”
and he had “developed a distortion of motivations to be accepted in a
familial sense.” He was thus “very vulnerable and subject to becoming
enmeshed with others . . . to try to become a member of a family.” He also
took on a “docile” and “accom[m]odating” nature, such that if someone
were to become more aggressive, Hedlund “would be very much subject to
going along” with that person in order to maintain his role as protector and
fulfill his need to demonstrate loyalty. Dr. Holler ultimately concluded that
Hedlund’s childhood abuse and resulting mental impairments
“significantly impair[ed] his capacity to conform his conduct to the
requirements of the law.”

¶49        Dr. Holler’s opinions are supported not only by the testimony of
Hedlund’s siblings but also by others who knew him throughout his life.
One of his aunts described him as a “quiet” child who “ached for someone
to love him.” His childhood friend noted he would always look out for her
and keep her “out of trouble.” And his sister testified that even though
Hedlund was the oldest sibling, when they were children “whatever
[McKinney] said [Hedlund] did.”

¶50       Each person who knew Hedlund as a child and adult testified he
was a quiet, “mild mannered,” non-violent person who avoided
confrontation and was “scared” of getting “into fights.” As an example,
while McKinney and C.M., Hedlund’s other half-brother, were committing
another burglary, Hedlund, who was supposed to pick them up afterwards,




                                     19
                           STATE v. HEDLUND
                         JUDGE VÁSQUEZ, Dissenting


abandoned them and drove away because he was “scared of getting caught
and he didn’t want to be near the burglary.”

¶51         Hedlund’s childhood efforts to protect his siblings, even at the
risk of his own personal safety, continued into his adulthood. His sister
testified that Hedlund protected her from abusive boyfriends. C.M.
testified that Hedlund’s involvement in the Mertens’s burglary came about
because he “wanted to protect [C.M.]” from “get[ting] caught or get[ting]
in trouble” because the people in the Mertens’s house knew C.M. and
would be able to identify him. And, in the months leading up to these
crimes, when McKinney and Hedlund were spending considerable time
together, Hedlund told their sister he feared McKinney “would go right
back to prison” if “he had no one to talk to . . . and be his friend and a family
member.”

¶52         The State did not call any of its own expert witnesses to
contradict those presented by Hedlund. Additionally, because the lay
witnesses’ testimony supported Dr. Holler’s opinions, his testimony is
entitled to “serious consideration” as a mitigating factor. State v. Trostle,
191 Ariz. 4, 21 (1997) (defendant’s unrebutted expert testimony regarding
mental illness and social dysfunction, supported by lay witnesses’
descriptions of defendant, warranted “serious consideration” as a
mitigating factor). Thus, contrary to the majority’s assertion that “no
evidence shows that Hedlund’s difficult childhood affected his ability to
control his actions to conform with the law,” supra ¶ 25, the expert
testimony introduced by Hedlund, together with the corroborating lay
testimony, did exactly that. It demonstrates a causal connection between
Hedlund’s childhood that contributed to the murder of McClain: When
faced with a choice between demonstrating loyalty to and protecting his
brother, or conforming his conduct to the law, Hedlund’s judgment and
ability to choose the latter was significantly impaired. See State v. Bocharski,
218 Ariz. 476, 496 ¶¶ 96–97, 110 (2008) (causal connection established by
expert testimony that defendant’s “troubled upbringing” caused lasting
psychological damage that likely played “substantial role in the events that
led to” victim’s murder).




                                       20
                          STATE v. HEDLUND
                        JUDGE VÁSQUEZ, Dissenting


¶53        The majority contends this case is distinguishable from Bocharski.
Supra ¶ 37. I disagree. The mitigating evidence in this case is very much
like that presented in Bocharski. See Bocharski, 218 Ariz. at 497 ¶¶ 102–07,
109–10. For instance, like Bocharski, Hedlund’s childhood abuse is “unique
in its depth and breadth.” Id. at 498–99 ¶ 109. Dr. Holler’s testimony, like
the expert in Bocharski, established a “causal connection” demonstrating
that Hedlund’s childhood abuse significantly impaired his cognitive
reasoning and ability to exercise good judgment. Id. at 499 ¶ 110.

¶54        The majority gives “slight” weight to Dr. Holler’s testimony
based, in part, on his opinion that Hedlund could have modified his
behavior had a police officer been present. Supra ¶¶ 20–22. Dr. Holler,
however, clarified that without the hypothetical police officer’s immediate
presence, Hedlund’s “dynamics [would] become predominant” and “lead
him into actions which in terms of strictly intellectual capability, he would
not do.” Although the majority overlooks this nuanced opinion, there was
no police officer present on the night of McClain’s murder, so Hedlund’s
judgment indeed was influenced by what Dr. Holler characterized as his
“neuropsychological impairment” at the time. See State v. Stevens, 158 Ariz.
595, 599–600 (1988) (reducing death sentence to life imprisonment based, in
part, on psychiatrist’s testimony that defendant had “capacity to appreciate
right from wrong” but “mental disorder” impaired his “ability to conform
his behavior [to] the requirements of the law” at time of crime).

¶55         The majority also assigns “little weight” to the evidence of
Hedlund’s childhood abuse and its impact on Hedlund’s psyche because
“[he] left the home around age thirteen, more than ten years before the
crimes.” Supra ¶ 25. For the following reasons, I disagree with that
assessment as well.

¶56        First, Dr. Holler’s testimony shows that although Hedlund
physically removed himself from the abuse, its effects did not simply end
with a change in his physical surroundings. His neuropsychology and
brain development were shaped by the years of abuse he endured, and it is
unreasonable to believe any negative impact resolved after he moved out
of the abusive environment. Second, Hedlund’s life after leaving McKinney
Sr.’s home was far from idyllic. After he moved out, he dropped out of




                                     21
                           STATE v. HEDLUND
                         JUDGE VÁSQUEZ, Dissenting


school at age fourteen and began working as an agricultural field worker,
picking cotton, vegetables, and sugar cane. When he was seventeen or
eighteen, Hedlund attempted suicide. Third, after Hedlund left McKinney
Sr.’s home, McKinney stayed behind and the brothers were separated.
Before McKinney reappeared in Hedlund’s life, Hedlund had held a steady
job, been a reliable employee, and paid his bills. In the few months before
these crimes, however, McKinney was released from jail and began
demanding Hedlund’s attention. Also during that time, McKinney Sr. and
their stepmother had begun living with their aunt. Both of those
circumstances caused Hedlund to “[get] back around his father” during this
time. Thus, although Hedlund was not living in the same house with the
daily abuse at the time of the crimes, he had recently become surrounded
by circumstances reminiscent of that time in his life.

¶57        Viewing the evidence cumulatively, as we must, see State v.
White, 194 Ariz. 344, 350 ¶ 19 (1999); see also State v. Kayer, 194 Ariz. 423,
432–33 ¶ 28 (1999), it shows that Hedlund’s childhood abuse and neglect
significantly impacted his behavior and is therefore entitled to substantial
weight, see State v. Towery, 186 Ariz. 168, 189 (1996); see also State v. Wallace,
160 Ariz. 424, 427 (1989).

                               Plea Agreement

¶58       I further disagree with the weight the majority attributes to the
plea agreement that the trial court rejected. See supra ¶¶ 30–31. The initial
plea agreement provided that Hedlund would plead guilty to
second-degree murder as to Mertens and theft “[s]tacked with a prior” as
to McClain. After the trial court rejected this agreement, the State and
Hedlund reached a second plea agreement with the court’s guidance.3

3 In 1996, this Court stated that there was no record of a second plea
agreement. McKinney, 185 Ariz. at 575. The Ninth Circuit, however, stated
that the parties “reportedly arrived at a second agreement consisting of a
guilty plea for the second degree murder of Mertens, and theft with a prior
and burglary non-dangerous with respect to McClain.” Hedlund v. Ryan,
854 F.3d 557, 575 (9th Cir. 2017). This is supported by Hedlund’s notice for




                                       22
                           STATE v. HEDLUND
                         JUDGE VÁSQUEZ, Dissenting


Under that agreement, Hedlund would plead guilty to second-degree
murder for Mertens’s murder, and theft and burglary in the McClain case.
The plea was never presented to the court, however, because Hedlund’s
counsel allowed the deadline to lapse, choosing instead to file a notice for
change of judge to hear the plea.

¶59         The majority assigns only “some weight” to the plea agreements,
asserting: “Plea offers can be made for reasons that have nothing to do with
whether a prosecutor believes the defendant deserves the death penalty.”
Supra ¶ 31. This may be true generally, but this case involves not one but
two plea offers, the second of which would have permitted Hedlund to
plead guilty to theft and burglary for the crimes committed against
McClain, the same incident for which the death penalty is being affirmed.
It is significant that had Hedlund’s counsel not missed the deadline for
entering a plea, Hedlund might not be facing the death penalty. Although
we cannot know whether the trial court would have accepted the second
plea, both offers are evidence that the State did not regard Hedlund as being
as culpable as McKinney, who, from the record, it appears was never
offered a plea. “The plea offer’s mitigatory effect is clear: the prosecution
thought this was not a clear-cut death penalty case.” Scott v. Schriro, 567
F.3d 573, 584 (9th Cir. 2009). Accordingly, I believe this is entitled to
substantial weight.4


change of judge, in which he indicated the parties had reached the second
agreement, as well as the prosecutor’s testimony that they had been in
negotiations for a second plea agreement.
4 As to the remaining mitigating factors, I agree that, despite evidence
supporting them, see State v. Watson, 129 Ariz. 60, 63 (1981) (court must
review “all the records”), they are entitled to little or no weight, see State v.
Hargrave, 225 Ariz. 1, 19 ¶ 82 (2010) (“minor participation” not established
in killings when defendant involved in planning and execution of robbery
and knew co-defendant prepared to kill, despite not being shooter and not
intending victims harm); see also State v. Dann, 220 Ariz. 351, 376 ¶ 150 (2009)
(evidence of remorse entitled to little weight “when the defendant denies




                                       23
                           STATE v. HEDLUND
                         JUDGE VÁSQUEZ, Dissenting


                     Sole Aggravator: Pecuniary Gain

¶60         The majority states the pecuniary gain aggravator here is
“especially strong.” Supra ¶¶ 13, 34. Although I agree that we must accept
this aggravator as having been proven, I disagree with the characterization
of its strength. See State v. Richmond, 136 Ariz. 312, 320 (1983) (independent
review requires this Court to “determine for ourselves the . . . weight to
give” aggravating factor).

¶61         Cases in which this Court affirmed the death penalty where the
sole aggravator was pecuniary gain are not common. And, a comparison of
those cases reveals striking similarities that shed light on the strength of the
aggravating circumstance in this case. Not only were the murders in those
cases carefully conceived and planned, but there was an intimate
relationship of trust between the victim and the defendant, or they involved
a murder-for-hire killing arranged by the victim’s loved one. See State v.
Harrod, 218 Ariz. 268, 284 ¶ 63 (2008) (pecuniary gain in context of contract
killings “especially strong”); see also Spears, 184 Ariz. at 282, 292–93
(defendant began romantic relationship with victim in preconceived plan
to obtain her truck and money); State v. Willoughby, 181 Ariz. 530, 533, 548–
49 (1995) (pecuniary gain based on “deliberate, carefully conceived,
meticulously planned, and cold-blooded scheme to kill . . . [defendant’s]
unsuspecting wife”); State v. White, 168 Ariz. 500, 503, 510–13 (1991)
(defendant and romantic partner schemed to kill partner’s husband to
collect insurance proceeds), abrogated on other grounds by State v. Salazar, 173
Ariz. 399, 416–17 (1992). Indeed, in Willoughby, this Court noted that
although the mitigating evidence in that case would typically “weigh
heavily in favor of leniency,” it was not warranted “given the strength and
quality of the aggravating circumstance.” 181 Ariz. at 549.




responsibility for his conduct”); State v. Medrano, 185 Ariz. 192, 194–95
(1996) (no question defendant used cocaine on night of murder, but
“primary issue is whether defendant has shown that he was significantly
impaired at the time, and that is where the evidence falls short”).




                                      24
                           STATE v. HEDLUND
                         JUDGE VÁSQUEZ, Dissenting


¶62         Conversely, in the cases where this Court reduced to life
imprisonment a death sentence that had been based on pecuniary gain as
the sole aggravator, there was no indication of a well thought-out,
long-term plan, nor was there an intimate relationship of trust between the
defendant and the victim. See Stevens, 158 Ariz. at 596 (reducing death
penalty to life imprisonment where defendant, at pre-arranged drug sale
with co-worker, robbed and shot co-worker’s companion); State v. Marlow,
163 Ariz. 65, 71–72 (1989) (leniency warranted where defendant robbed and
killed victim who had won substantial sum at casino earlier that night); see
also State v. Rockwell, 161 Ariz. 5, 8, 16 (1989) (death penalty reduced to life
sentence for murder that occurred in course of truck-stop robbery).

¶63       In State v. Graham, for example, the defendant, after a night of
drinking, decided to rob the victim at his home, obtained a gun, and shot
the victim when he opened the door. 135 Ariz. 209, 210 (1983). In
mitigation, the defendant showed he suffered from a long-term substance
abuse problem, had no prior record revealing a tendency toward that type
of violent crime, and was described as “a nonaggressive and passive
individual who [was] easily influenced by others.” Id. at 213. By focusing
on the lack of mitigating evidence of substance abuse in this case, the
majority has discounted its similarities to Graham with respect to the
aggravating circumstance of pecuniary gain. See supra ¶ 38.

¶64        I acknowledge that Hedlund knew McClain, having previously
purchased a car from him, and the crimes involved some planning,
arguably making them somewhat similar to cases like Spears, Willoughby,
and White. See State v. McKinney, 245 Ariz. 225, 228 ¶ 12 (2018) (McKinney
leader in planning and executing burglaries). But the relationship between
Hedlund and McClain is far from the intimate relationships in Spears,
Willoughby, and White and more akin to that of an acquaintance, as in
Graham or Stevens. Moreover, the common thread in all the above cases—
reduced sentence or not—is that pecuniary gain was the motivating factor.
Here, however, the record shows that not only was pecuniary gain just one




                                      25
                           STATE v. HEDLUND
                         JUDGE VÁSQUEZ, Dissenting


of Hedlund’s motives, it likely was not his primary motivating factor.5 See
State v. Acuna Valenzuela, 245 Ariz. 197, 222 ¶ 42 (2018) (“[P]ecuniary gain
need not be the only motive for the . . . aggravator to apply.”); see also State
v. Martinez, 218 Ariz. 421, 435 ¶ 66 (2008) (“Pecuniary gain . . . need only be
a motive for the murder, not the sole motive.”). Thus, although the state
proved pecuniary gain beyond a reasonable doubt, the evidence supporting
it, given Hedlund’s competing motivations, is not especially strong. See
State v. Bearup, 221 Ariz. 163, 172 ¶ 44 (2009) (court must independently
consider quality and strength of aggravating factors).

¶65         On the night McKinney proposed committing burglary,
Hedlund repeatedly stated he was not interested and thought it was “a
stupid idea.” Hedlund had a steady job, owned his car, could afford what
small bills he had, and was able to financially assist his sisters and mother.
When McKinney offered Hedlund items stolen from the burglaries
McKinney and C.M. committed, Hedlund took only some “wheat pennies,”
saying he did not want anything else. These facts suggest financial gain
was not Hedlund’s primary motivation. Conversely, the evidence shows
that financial gain was the motivating factor for McKinney. He had no job,
no car, owed thousands of dollars in fines, and he was the one who
proposed the burglaries to find cash and property to sell. See McKinney, 245
Ariz. at 227–28 ¶ 12; see also Spears, 184 Ariz. at 292–93 (defendant’s lack of
money and source of income supported finding pecuniary gain).

¶66       The majority points out that Hedlund stated that “anyone he
found would be beaten in the head” as evidence of Hedlund’s “active
complicity in the crimes.” Supra ¶ 14 (quoting McKinney, 185 Ariz. at 571,
580). Indeed, Hedlund did say that he would hit anyone on the head who

5 On direct review in 1996, this Court stated, and the majority now quotes,
see supra ¶ 14, “Clearly, the evidence of pecuniary gain as the primary, if
not sole, purpose of the murders is overwhelming and inescapable.” State
v. McKinney, 185 Ariz. 567, 584 (1996). The Court, however, provided no
analysis supporting that statement. Although it is true as it applies to
McKinney, for the reasons that follow, the evidence simply does not
support that same conclusion as it applies to Hedlund.




                                      26
                           STATE v. HEDLUND
                         JUDGE VÁSQUEZ, Dissenting


was home. But that was only in response to McKinney’s assertion that he
would shoot whomever he encountered and, according to C.M., was meant
to “give [McKinney] a different idea” and get McKinney “away from the
idea . . . of hurting anyone.” Placed in context, this statement does not so
clearly imply what the majority asserts it does. Rather, it again fits
Hedlund’s profile of attempting to mitigate McKinney’s aggressive
tendencies.

¶67          As further support for its assertion that the aggravator is
particularly strong in this case, the majority states that “Hedlund’s only
motive in shooting McClain in the back of the head while McClain slept was
to facilitate the robbery.” Supra ¶ 34. And this Court has previously stated
there was “ample evidence” that Hedlund was the one who shot McClain.
McKinney, 185 Ariz. at 580. However, there is no evidence which brother
shot McClain, and while the evidence relied upon in McKinney does
demonstrate that Hedlund participated in the McClain robbery, it does not,
in fact, support the conclusion that he shot McClain. See id. At Hedlund’s
sentencing, the trial court, after citing that same evidence, asserted “it is
unclear as to whether Mr. Hedlund or Mr. McKinney fired the shot which
actually killed Mr. McClain.”

¶68         As discussed above, the mitigation evidence established
Hedlund’s overarching motivation was, as it had been since childhood, to
protect his siblings, follow along with McKinney, particularly as McKinney
grew more aggressive in the months leading up to the crimes, and to
mitigate, to the extent he could, his brother’s criminal tendencies. Thus, the
fact that he attempted to sell or hide the weapons after the crime is not,
contrary to the majority’s assertion, illustrative of his financial motives. See
supra ¶¶ 35–36. McKinney’s aggressiveness in demanding Hedlund’s car
and companionship before the crime also makes it unclear whether
Hedlund supplied the gun used in the McClain murder or McKinney
simply commandeered it. See supra ¶¶ 35–36. Further, although Hedlund
participated in the McClain burglary despite knowing McKinney had killed
Mertens, that fact, again, fits with both Dr. Holler’s and the lay witnesses’
testimony about Hedlund’s loyalty to McKinney. Shortly before the
burglaries, Hedlund expressed his distress over McKinney being “up to his
old things again” and “had broken into houses.” When his friend advised




                                      27
                           STATE v. HEDLUND
                         JUDGE VÁSQUEZ, Dissenting


Hedlund to stay away from McKinney, Hedlund replied “That’s very
impossible, with him being my brother.”

¶69        After considering all the evidence, it is clear that Hedlund’s
motivation to participate in the crimes could just as easily have been out of
love for and loyalty to McKinney, as well as a misguided attempt to
mitigate McKinney’s actions and their consequences, as it was out of a
personal desire to benefit financially. Cf. White v. Ryan, 895 F.3d 641, 645–
46, 658–59, 673 (9th Cir. 2018) (counsel ineffective for not challenging
pecuniary gain where evidence showed co-defendant planned murder and
pressured defendant into committing crime on her behalf, “suggesting
[defendant] acted out of love rather than pecuniary gain”); State v.
Prasertphong, 206 Ariz. 167, 170 ¶¶ 6, 11–13 (2003) (pecuniary gain not
proved where evidence showed defendant may have been “unaware” of
co-defendant’s intent to kill and post-murder actions possibly committed
“out of shock or panic”). Accordingly, the evidence does not suggest, like
the cases in which this Court affirmed the death penalty based solely on
pecuniary gain, that Hedlund abused a position of trust with McClain with
the primary intent to benefit financially. This aggravator, while proven
beyond a reasonable doubt, is therefore not entitled to the great weight the
majority attributes to it.

                                  Balancing

¶70          In considering the mitigating factors, this Court is obligated to
weigh them separately and cumulatively, and then determine whether that
evidence outweighs the state’s aggravating evidence. See White, 194 Ariz.
at 350 ¶ 19. Put another way, this Court cannot view each piece of
mitigating evidence in isolation, but must consider the sum of its parts. We
do not merely compare the number of aggravating and mitigating factors,
see State v. Greene, 192 Ariz. 431, 443–44 ¶ 60 (1998), but “where significant
mitigating evidence is balanced against a single aggravating factor, a
serious question is raised as to whether a death sentence is warranted,”
Marlow, 163 Ariz. at 72; see also Bocharski, 218 Ariz. at 499 ¶ 112 (when faced
with “limited aggravation evidence and . . . strong mitigation evidence,”
leniency warranted).




                                      28
                           STATE v. HEDLUND
                         JUDGE VÁSQUEZ, Dissenting


¶71         Stevens is instructive. There, the defendant called his co-worker
to arrange a drug sale. 158 Ariz. at 596. When his co-worker arrived with
the victim, the defendant robbed them and then shot the victim in the head.
Id. The mitigation evidence was substantially similar to that presented in
this case and in Graham: the defendant had no prior criminal history, no
record revealing a propensity for violent crime, was described as
nonaggressive and passive, and his past harmful actions were nearly
always the result of an outside influence. Id. at 599–600. Leniency was thus
warranted because “Stevens’ condition at the time of the offense was a
major and contributing cause of his conduct and was sufficiently
substantial to outweigh the aggravating factor of pecuniary gain.” Id. at
600; see also Marlow, 163 Ariz. at 71–72 (pecuniary gain outweighed by
“dramatic disparity” in sentence compared to co-defendant); Rockwell, 161
Ariz. at 15–16 (mitigation evidence showing defendant suffered severe
trauma and head injuries following motorcycle accident years earlier
outweighed financial motive); cf. State v. Hensley, 142 Ariz. 598, 604 (1984)
(leniency not warranted where defendant shot victims in back of head after
robbery to eliminate witnesses and only mitigating evidence that defendant
“obtained a G.E.D. degree”).

¶72          In this case, the substantial mitigating evidence outweighs the
aggravating evidence presented. Notably, I joined with the majority in
affirming the death sentence for McKinney. See McKinney, 245 Ariz. 225.
Notwithstanding the additional aggravators present in McKinney’s case,
see id. at 227–28 ¶¶ 7, 16, a comparison between the two men illustrates why
each case compels a different conclusion on the appropriateness of the
death penalty.

¶73         To begin, the difference in how the family described the two men
is telling. See State v. Watson, 129 Ariz. 60, 63 (1981) (court must review “all
the records”). Their sister described McKinney, whom she was aware also
faced the death penalty, as “a very, very vicious child” who “scared the hell
out of [her],” whereas Hedlund was “mild mannered” and “timid.”
Whereas McKinney would frequently steal for his stepmother, Hedlund
refused and instead would tell his grandmother or another adult about his
stepmother’s requests. Their sister recounted that McKinney often hit the
other children and “provoked every fight there was and then would blame




                                      29
                           STATE v. HEDLUND
                         JUDGE VÁSQUEZ, Dissenting


it on [his siblings].” In one instance, she, Hedlund, and their other sister
climbed into a treehouse, and McKinney then set the tree on fire. In another
incident, McKinney told the family he was digging “graves” in a canal bank
near their house “[b]ecause [he was] going to kill all of [them].”

¶74        In relation to the crimes themselves, when C.M. told McKinney
and Hedlund that he had heard about Mertens’s death, Hedlund “had a
very serious, somber look,” but McKinney “smil[ed].” Hedlund became
“agitated,” “somber,” and “distressed” after the crimes and told C.M. he
had a “bad conscience,” but McKinney’s personality did not change.
Hedlund was “glad” C.M. talked with the police about the case, but
McKinney told C.M. he would “go down as well” if he “snitched
[McKinney] off.” And the manner in which McKinney killed Mertens was
“especially heinous, cruel or depraved.” McKinney, 245 Ariz. at 227 ¶ 7.

¶75        McKinney’s disturbing background and actions “set[] him apart
from the usual murderer.” Watson, 129 Ariz. at 63; see also Spears, 184 Ariz.
at 295. Hedlund, however, does not stand out as “the worst of the worst.”
White, 194 Ariz. at 357–58 ¶ 55 (Zlaket, J., dissenting). Despite his abusive
childhood, he did not develop the violent and homicidal tendencies of his
brother. Rather, as the oldest child, he developed a strong, seemingly
pathological, need to protect his younger siblings and facilitate a sense of
belonging and family. Until McKinney reentered his life, Hedlund worked
a steady job, supported his sisters and mother, and generally led a quiet life.
Indeed, Durand testified that, of all the family she had talked to, none of
them was “surprised by the accusations against [McKinney],” but they
“were in utter disbelief that [Hedlund] could have been involved.” In sum,
Hedlund’s background and neuropsychological impairments, “while not
making [him] unaccountable for his crime,” support leniency in the form of
a sentence of life imprisonment. Rockwell, 161 Ariz. at 15.

¶76        “Where there is a doubt whether the death sentence should be
imposed, we will resolve that doubt in favor of a life sentence.” State v.
Valencia, 132 Ariz. 248, 250 (1982); see also Marlow, 163 Ariz. at 72; Rockwell,
161 Ariz. at 16. In this case, the substantial mitigating evidence, taken as a
whole, when balanced against a single aggravating factor that is not, in my
view, “especially strong,” as the majority characterizes it, supra ¶¶ 13, 34 is




                                      30
                        STATE v. HEDLUND
                      JUDGE VÁSQUEZ, Dissenting


at least enough “to question whether death is appropriate,” Trostle, 191
Ariz. at 23. For this reason, Hedlund’s death sentence should be reduced
to life imprisonment.




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