                                 IN THE

    SUPREME COURT OF THE STATE OF ARIZONA
                           STATE OF ARIZONA,
                               Appellee,

                                    v.

                         JAMES ERIN MCKINNEY,
                               Appellant.

                           No. CR-93-0362-AP
                        Filed September 27, 2018

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

                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,
Jeffrey L. Sparks (argued), Assistant Attorney General, Phoenix, Attorneys
for State of Arizona

Sharmila Roy (argued), Laveen, Attorney for James Erin McKinney



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

JUSTICE GOULD, opinion of the Court:

*Justice John R. Lopez IV has recused himself from this case. Pursuant to
article 6, section 3, of the Arizona Constitution, the Honorable Garye L.
Vásquez, Judge of the Arizona Court of Appeals, Division Two, was
designated to sit in this matter.
                           STATE V. MCKINNEY
                            Opinion of the Court



¶1            We previously affirmed James Erin McKinney’s two death
sentences on independent review. State v. McKinney (McKinney I), 185 Ariz.
567, 587 (1996). However, in McKinney v. Ryan (McKinney V), 813 F.3d 798,
804, 823–24 (9th Cir. 2015) (en banc), the Ninth Circuit Court of Appeals
held that McKinney I applied an unconstitutional “causal nexus” test to
McKinney’s mitigation evidence. We subsequently granted the State’s
motion to conduct a new independent review of McKinney’s death
sentences and, following such review, we affirm both sentences.

                                      I.

¶2            In March 1991, McKinney and his half-brother, Charles
Michael Hedlund, burglarized the home of Christine Mertens. McKinney I,
185 Ariz. at 572. Inside the residence, McKinney beat Mertens and stabbed
her several times before holding her face-down on the floor and shooting
her in the back of the head. Id. Two weeks later, the brothers burglarized
the home of sixty-five-year-old Jim McClain and shot him in the back of the
head while he slept in his bed. Id. The cases were consolidated for trial,
and a jury found McKinney guilty of first degree murder as to both victims.
Id.

¶3            During the sentencing phase, the trial court found several
aggravating and mitigating circumstances. See infra ¶¶ 7–9, 15–16. After
determining that the mitigating circumstances were not sufficiently
substantial to call for leniency, the court sentenced McKinney to death for
both murders. McKinney I, 185 Ariz. at 571.

¶4            We affirmed McKinney’s convictions and sentences upon
independent review. Id. at 587. McKinney subsequently filed a petition for
habeas corpus, which the federal district court denied. McKinney v. Ryan,
2009 WL 2437238 (D. Ariz. 2009). On appeal, the Ninth Circuit reversed
and remanded the case to the federal district court with instructions to grant
McKinney’s writ of habeas corpus “unless the [S]tate, within a reasonable
period, either corrects the constitutional error in his death sentence or
vacates the sentence and imposes a lesser sentence consistent with law.” Id.
at 827.




                                      2
                           STATE V. MCKINNEY
                            Opinion of the Court

¶5            Following the Ninth Circuit’s reversal in McKinney V, the
State requested this Court to conduct a new independent review.
McKinney opposed that motion, arguing that in light of Ring v. Arizona, 536
U.S. 584 (2002), he is entitled to a new sentencing trial before a jury. We
disagree. Independent review is warranted here because McKinney’s case
was “final” before the decision in Ring. See State v. Styers, 227 Ariz. 186,
187–88 ¶¶ 5–6 (2011) (holding that “[b]ecause Styers had exhausted
available appeals, his petition for certiorari had been denied, and the
mandate had issued almost eight years before Ring was decided, his case
was final, and he therefore is not entitled to have his case reconsidered in
light of Ring”).

                                      II.

¶6             In conducting our independent review in pre-Ring cases like
this, we examine “the trial court’s findings of aggravation and mitigation
and the propriety of the death sentence,” and determine whether the
defendant’s proffered mitigation “is sufficiently substantial to warrant
leniency in light of the existing aggravation.” A.R.S. § 13–755(A); see Styers,
227 Ariz. at 188 ¶ 7. We must consider and weigh all mitigation evidence
regardless of whether it bears a causal nexus to the underlying murders.
State v. Newell, 212 Ariz. 389, 405 ¶ 82 (2006); see also Eddings v. Oklahoma,
455 U.S. 104, 112 (1982) (requiring sentencer to consider all relevant
mitigating evidence). However, the lack of “a causal connection may be
considered in assessing the quality and strength of the mitigation
evidence.” Newell, 212 Ariz. at 405 ¶ 82; cf. Eddings, 455 U.S. at 114–15 (“The
sentencer, and the Court of Criminal Appeals on review, may determine
the weight to be given relevant mitigating evidence.”).

                                      A.

¶7            There is no reasonable doubt as to the aggravating
circumstances found by the trial court regarding Mertens’ murder.
Specifically, McKinney (1) committed the murder with the expectation of
pecuniary gain pursuant to former A.R.S. § 13-703(F)(5) (now § 13-




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                           STATE V. MCKINNEY
                            Opinion of the Court

751(F)(5)),1 and (2) he killed Mertens in an especially heinous, cruel or
depraved manner, pursuant to § 13-751(F)(6).

¶8             McKinney proved several mitigating circumstances. The
record shows that he endured a horrific childhood. At the sentencing
hearing, McKinney’s sister and aunt testified that McKinney was verbally
and physically abused by his stepmother. McKinney also experienced
severe neglect. His stepmother frequently deprived him of food, forced him
to live in filthy conditions and wear soiled clothes, and regularly locked
him out of the home in extreme temperatures. See McKinney V, 813 F.3d
at 805–06 (summarizing McKinney’s evidence regarding childhood abuse
and neglect).

¶9            McKinney also suffered from Post–Traumatic Stress Disorder
(“PTSD”) at the time of the murders. Dr. Mickey McMahon, a clinical
psychologist, evaluated McKinney and testified that McKinney’s PTSD was
caused by the abuse and trauma he experienced as a child.

¶10           Given the aggravating circumstances in this case, we
conclude that McKinney’s mitigating evidence is not sufficiently
substantial to warrant leniency. In weighing McKinney’s mitigation
evidence, we take into account the fact that it bears little or no relation to
his behavior during Mertens’ murder. For example, Dr. McMahon testified
that due to the PTSD, he believed that McKinney would “rather withdraw
from [a] situation” in which he might encounter violence, and that his
evaluation of McKinney “did not indicate that he was [a] thrill-seeking kind
of person” who would murder someone in cold blood. However,
McKinney’s actions during the Mertens murder were planned and
deliberate. Specifically, McKinney entered Mertens’ home armed with a
gun and knowing she was inside (because her car was parked outside).
Additionally, after invading Mertens’ home, he intentionally beat, stabbed,
and shot her.

¶11          We accord McKinney’s remaining mitigation minimal
weight. For example, he argues that his age (twenty-three) at the time of
the murders is a mitigator warranting leniency. In deciding how heavily to

1
 A.R.S. § 13-703, the effective statute at the time of McKinney’s crimes and
first appeal, was renumbered as § 13-751 in 2008. We refer to the current
version of the statute.
                                      4
                            STATE V. MCKINNEY
                             Opinion of the Court

weigh a defendant’s age in mitigation, we consider the “defendant's level
of intelligence, maturity, involvement in the crime, and past
experience.” State v. Jackson, 186 Ariz. 20, 30 (1996).

¶12           Here, McKinney was the leader in planning and executing the
burglaries and expressed a willingness to kill to make them successful. We
therefore give little weight to McKinney’s age. See State v. Garza, 216 Ariz.
56, 72 ¶ 82 (2007) (“Age is of diminished significance in mitigation when
the defendant is a major participant in the crime, especially when the
defendant plans the crime in advance.”).

¶13             McKinney also argued at sentencing that residual doubt as to
his guilt calls for leniency. However, this Court has previously stated that
“[o]nce a person is found guilty beyond a reasonable doubt, claims of
innocence or residual doubt do not constitute mitigation for sentencing
purposes.” State v. Moore, 222 Ariz. 1, 22 ¶ 133 (2009).

¶14          In contrast to the proffered mitigation, the (F)(5) aggravator
weighs heavily in favor of a death sentence. We agree with the conclusion
reached in McKinney I:

       In comparison to the mitigating circumstances here, the
       quality of the [pecuniary gain] aggravating circumstance is
       great. . . . [T]his is not the case of a convenience store robbery
       gone bad but, rather, one in which pecuniary gain was the
       catalyst for the entire chain of events leading to the murders.
       The possibility of murder was discussed and recognized as
       being a fully acceptable contingency.

185 Ariz. at 584.

¶15          Additionally, the (F)(6) aggravator is entitled to great weight.
The evidence shows that Mertens struggled to stay alive while McKinney
stabbed and beat her. See State v. Jones, 185 Ariz. 471, 487 (1996) (stating that
cruelty focuses on the mental anguish or physical abuse inflicted by the
defendant on the victim before her death); State v. Lopez, 175 Ariz. 407, 411
(1993) (holding that murder was especially cruel where victim suffered
numerous injuries during a struggle). The medical examiner testified that
Mertens was beaten, stabbed multiple times, suffered several defensive
wounds, and sustained a broken finger before being held face down on the

                                       5
                           STATE V. MCKINNEY
                            Opinion of the Court

floor and shot in the back of the head. When her son found her body,
Mertens was covered with blood and there was a pillow over her head. The
carpet was soaked with blood, the telephone and cord were strewn on the
floor, and Mertens’ glasses were broken, indicating a struggle.

                                     B.

¶16          There is also no reasonable doubt as to the following
aggravating circumstances found by the trial court regarding McClain’s
murder: (1) McKinney was convicted of another offense (first degree
murder of Mertens) for which a sentence of life imprisonment or death was
imposable under Arizona law, under § 13-751(F)(1); and (2) he committed
the murder with the expectation of pecuniary gain pursuant to A.R.S. § 13-
751(F)(5).

¶17          McKinney proffered the same mitigation for both the McClain
and Mertens murders. For the reasons discussed above, we place minimal
weight on McKinney’s mitigation. See supra ¶¶ 10–12. As part of this
weighing, we simply note again that there is little or no connection between
McKinney’s mitigation and his behavior during the murder. For example,
Dr. McMahon opined that burglarizing a home and shooting a sleeping
man would be “the exact opposite” of what he would expect McKinney to
do when affected by his PTSD.

¶18             In contrast, the aggravators for the McClain murder are
particularly weighty. See McKinney V, 813 F.3d at 823 (“We recognize that
there were important aggravating factors in this case. . . . McKinney [was]
involved, as either the actual killer or as an accessory, in two murders; the
murders had been done for pecuniary gain. . . .”). The (F)(1) aggravator
involves the commission of multiple homicides and is therefore
“extraordinarily weighty.” State v. Hampton, 213 Ariz. 167, 184 ¶ 81 (2006)
(discussing the extraordinary weight accorded the (F)(8) multiple
homicides aggravator); Garza, 216 Ariz. at 72 ¶ 81 (same). Additionally,
(F)(5) is a strong aggravator in the McClain murder. See supra ¶ 14. The
crime was planned and deliberate. McKinney and Hedlund targeted
McClain as a victim in order to rob him. Additionally, as was the case for
the Mertens murder, McKinney had previously stated his intent to kill
anyone he encountered during the burglary, which was evidenced by the
fact he and Hedlund were armed when they entered McClain’s home and
then shot the unarmed victim as he slept in his bed. See supra ¶ 12.

                                      6
                         STATE V. MCKINNEY
                          Opinion of the Court

                            CONCLUSION

¶19          For the reasons discussed above, we affirm McKinney’s death
sentences.




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