State v. McKinney

Page 1214

917 P.2d 1214

185 Ariz. 567

STATE of Arizona, Appellee, v. James Erin McKINNEY, Appellant.

STATE of Arizona, Appellee, v. Charles Michael HEDLUND, Appellant.

Nos. CR-93-0362-AP, CR-93-0377-AP.

Supreme Court of Arizona, In Banc.

May 16, 1996.

[185 Ariz. 571] Grant Woods, Attorney General by Paul J. McMurdie, Mona S. Peugh-Baskin, Phoenix, for State of Arizona.

Neal W. Bassett, Phoenix, for James Erin McKinney.

Karen Kemper, Phoenix, for Charles Michael Hedlund.

OPINION

FELDMAN, Chief Justice.

This consolidated appeal is the first for these defendants following their convictions for two murders, committed two weeks apart, during the commission of residential burglaries. The trials were held simultaneously using dual juries, which this court approved in advance. ¹ On November 12, 1992, McKinney's jury found him guilty of first degree murder for the deaths of Christene Mertens and Jim McClain. That same day, Hedlund's jury found him guilty of second degree murder for Mertens' death and guilty of first degree murder for McClain's death. The court sentenced McKinney to death on both of his first degree murder convictions and sentenced Hedlund to death for his first degree murder conviction. Appeal of each judgment and sentence is automatic. Ariz.R.Crim.P. 26.15 and 31.2(b). This court has jurisdiction under Ariz. Const. art. VI, § 5(3) and A.R.S. §§ 13-4031 and 13-4033(A).

BACKGROUND

Beginning February 28, 1991, James Erin McKinney and Charles Michael Hedlund (Defendants) commenced a residential burglary spree for the purpose of obtaining cash or property. In the course of their extensive planning for these crimes, McKinney boasted that he would kill anyone who happened to be home during a burglary and Hedlund stated that anyone he found would be beaten in the head.

Defendants enlisted two friends to provide information on good burglary targets and to help with the burglaries. These two friends, Joe Lemon and Chris Morris, were not physically involved in the burglaries in which the murders occurred. It was from Lemon and Morris, however, that Defendants learned that Christene Mertens would make a good burglary target.

The first burglary in the spree occurred on February 28, 1991. Mertens' home was the intended target that night, but she came home and scared the would-be burglars away. A different residence was chosen to burglarize, but Defendants obtained nothing of value. Both Defendants, as well as Lemon and Morris, were involved in this crime.

The second and third burglaries occurred the next night, March 1. This time Lemon was not involved. The three participants stole a .22 revolver, $12, some wheat pennies, a tool belt, and a Rolex watch. A. The first murder

The fourth burglary took place on March 9, 1991. This time only McKinney and Hedlund were involved. Mertens was picked again because Defendants had been told by Lemon and Morris, who knew Mertens' son, that Mertens kept several thousand dollars in an orange juice container in her refrigerator.

Mertens was home alone when Defendants entered the residence and attacked her. Beaten and savagely stabbed, Mertens struggled to save her own life. Ultimately, McKinney held her face down on the floor and shot her in the back of the head, covering his pistol with a pillow to muffle the shot. Defendants then ransacked the house and ultimately stole $120 in cash.

B. The second murder

Defendants committed the fifth burglary on March 22, 1991. The target was Jim McClain, a sixty-five-year-old retiree who restored cars for a hobby. McClain was targeted because Hedlund had bought a car from him some months earlier and thought McClain had money at his house. Entry was gained through an open window late at night while McClain was sleeping. Hedlund brought along his .22 rifle, which he had sawed-off to facilitate concealment. Defendants ransacked the front part of the house then moved to the bedroom. While he was sleeping, McClain was shot in the back of the head with Hedlund's rifle. Defendants then ransacked the bedroom, taking a pocket watch and three hand guns; they also stole McClain's car.

State v. Hedlund

TRIAL ISSUES

A. Was Hedlund denied his right to counsel?

Hedlund claims that a hearing conducted in the absence of one of his attorneys was structural error requiring automatic reversal and violated his Sixth Amendment right to counsel because the hearing was a critical stage of the proceedings.

At trial, Lemon was called as one of the state's witnesses. After Lemon provided some preliminary testimony, a brief recess was called and a hearing conducted out of the jury's presence to determine if Lemon could be impeached with his juvenile record. One of Hedlund's lawyers, Mr. Leander, stepped out of the courtroom because he was not feeling well. While still on the record, the judge allowed Mr. Allen, McKinney's counsel, to question Lemon under Ariz.R.Evid. 609. ²

Lemon had previously been interviewed by all attorneys involved, and no evidence of any juvenile adjudications ever surfaced. The prosecutor told Defendants' attorneys that Lemon had no juvenile convictions, but neither counsel was satisfied and wanted to question him again.

While Mr. Leander was out of the courtroom, Lemon testified to having once been formally charged as a juvenile for aggravated battery. Lemon testified that he had gone before a judge on this charge, but that he never had a hearing where witnesses were called, never pleaded guilty, and had not been adjudicated. Lemon also testified that he was placed under house arrest for two weeks. Although Lemon's encounter with the juvenile justice system is not well explained in the record, it appears that Lemon was present, but not involved, when another juvenile was beaten by some other person, and that the juvenile judge ordered Lemon to serve some in-home detention and required him to get a job or go back to school. At the conclusion of Mr. Allen's examination and the state's cross-examination of Lemon, no evidence of any adjudication had been presented. Thus, the judge ruled that Lemon could not be impeached with his juvenile record.

When the trial resumed a few minutes later, Mr. Leander had returned and objected to the hearing having taken place without him. The judge refused to re-open the hearing unless Mr. Leander was prepared to introduce substantive evidence of juvenile adjudications. Mr. Leander had no such evidence and stated that he would like to question Lemon. The judge refused to allow any more questioning, concluding that Messrs. Leander and Allen had an identity of interest, that Mr. Allen had adequately explored the issue, and that in doing so had discovered no evidence of a juvenile adjudication.

Whether counsel's absence during a hearing violates the Sixth Amendment depends on whether the absence created a structural defect. See Arizona v. Fulminante, 499 U.S. 279, 309-10, 111 S.Ct. 1246, 1265, 113 L.Ed.2d 302 (1991). This determination may turn on whether the hearing was a critical stage of the adversary proceedings. See United States v. Cronic, 466 U.S. 648, 658-59, 104 S.Ct. 2039, 2046-47, 80 L.Ed.2d 657 (1984); United States v. Olano, 62 F.3d 1180, 1193 (9th Cir.1995); United States v. Benlian, 63 F.3d 824, 827 (9th Cir.1995).

1. What is a structural defect?

A "structural defect" is an error that affects "the framework within which the trial proceeds, rather than simply an error in the trial process itself." Fulminante, 499 U.S. at 309-10, 111 S.Ct. at 1264-65. In general, per se structural defects affect "[t]he entire conduct of the trial from beginning to end...." Id. at 310, 111 S.Ct. at 1265 (emphasis added). Such defects include total deprivation of counsel, a judge who is not impartial, unlawful exclusion of jurors who are of the defendant's race from a grand jury, denial of the right to self-representation, and denial of the right to a public trial. Id.

Hedlund does not claim, and the record does not show, that he suffered anything approaching a total absence of counsel. Accordingly, there is no per se structural defect. Therefore, Hedlund is entitled to Cronic's presumption of prejudice only if the Rule 609 hearing was a critical stage of the trial. See Benlian, 63 F.3d at 827.

2. What is a critical stage of the trial?

A "critical stage" is one at which "substantial rights of the accused may be affected." State v. Conner, 163 Ariz. 97, 104, 786 P.2d 948, 955 (1990); Menefield v. Borg, 881 F.2d 696, 698 (9th Cir.1989) (quoting Mempa v. Rhay, 389 U.S. 128, 134, 88 S.Ct. 254, 257, 19 L.Ed.2d 336 (1967)) ("[C]ounsel ... is required at every stage of a criminal proceeding where substantial rights of a criminal accused may be affected.") (sentencing). Whether a particular proceeding is a critical stage may depend on state law as well as the facts of the case. See Chester v. California, 355 F.2d 778, 779 (9th Cir.1966) ("An accused has a constitutional right to [counsel] at a preliminary examination in a state court if, under facts of the particular case, the examination is a [critical stage]."). The test for a critical stage is based on the following factors:

First, if failure to pursue strategies or remedies results in a loss of significant rights.... Second, where skilled counsel would be useful in helping the accused understand the legal confrontation.... Third, ... if the proceeding tests the merits of the accused's case.

Menefield, 881 F.2d at 698-99 (citations omitted). Hedlund offers no authority, and research reveals none, to support his contention that a Rule 609 hearing is necessarily a critical stage of the trial under Arizona law. ³ Thus, under the facts of this case, we conclude that the Rule 609 hearing was not a critical stage of Hedlund's proceedings.

B. Denial of confrontation

Hedlund also claims that the refusal to let his attorney question Lemon at the hearing was a denial of the right to confrontation and that such denial prevented impeaching Lemon with his...