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

2

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 halfbrother 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.

1 Section 13-703, the effective statute at the time of Hedlund’s crimes and 

direct appeal, was renumbered as § 13-751 in 2008.
STATE V. HEDLUND

Opinion of the Court

3

“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 
STATE V. HEDLUND

Opinion of the Court

4

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 
STATE V. HEDLUND

Opinion of the Court

5

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 
STATE V. HEDLUND

Opinion of the Court

6

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).
STATE V. HEDLUND

Opinion of the Court

7

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 
STATE V. HEDLUND

Opinion of the Court

8

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 
STATE V. HEDLUND

Opinion of the Court

9

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 welldeveloped 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. 
STATE V. HEDLUND

Opinion of the Court

10

¶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 
STATE V. HEDLUND

Opinion of the Court

11

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
STATE V. HEDLUND

Opinion of the Court

12

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 
STATE V. HEDLUND

Opinion of the Court

13

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 
STATE V. HEDLUND

Opinion of the Court

14

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.”). 
STATE V. HEDLUND

Opinion of the Court

15

¶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 
STATE V. HEDLUND

Opinion of the Court

16

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.
STATE V. HEDLUND

JUDGE VÁSQUEZ, Dissenting

17

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 
STATE v. HEDLUND

JUDGE VÁSQUEZ, Dissenting

18

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.
STATE v. HEDLUND

JUDGE VÁSQUEZ, Dissenting

19

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, 
STATE v. HEDLUND

JUDGE VÁSQUEZ, Dissenting

20

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).
STATE v. HEDLUND

JUDGE VÁSQUEZ, Dissenting

21

¶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 
STATE v. HEDLUND

JUDGE VÁSQUEZ, Dissenting

22

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 
STATE v. HEDLUND

JUDGE VÁSQUEZ, Dissenting

23

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 
STATE v. HEDLUND

JUDGE VÁSQUEZ, Dissenting

24

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”).
STATE v. HEDLUND

JUDGE VÁSQUEZ, Dissenting

25

¶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 
STATE v. HEDLUND

JUDGE VÁSQUEZ, Dissenting

26

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.
STATE v. HEDLUND

JUDGE VÁSQUEZ, Dissenting

27

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 
STATE v. HEDLUND

JUDGE VÁSQUEZ, Dissenting

28

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).
STATE v. HEDLUND

JUDGE VÁSQUEZ, Dissenting

29

¶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 
STATE v. HEDLUND

JUDGE VÁSQUEZ, Dissenting

30

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 
STATE v. HEDLUND

JUDGE VÁSQUEZ, Dissenting

31

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.