Wertz v. State

Cite as 2014 Ark. 240
SUPREME COURT OF ARKANSAS
No. CR-12-655
STEVEN VICTOR WERTZ Opinion Delivered May 22, 2014
APPELLANT
APPEAL FROM THE SHARP
V. COUNTY CIRCUIT COURT
[NO. CR-2006-75]
STATE OF ARKANSAS HONORABLE HAROLD S. ERWIN,
APPELLEE JUDGE
AFFIRMED.
KAREN R. BAKER, Associate Justice
On July 19, 2007, a Sharp County jury convicted appellant, Steven Victor Wertz, of
two counts of capital murder and sentenced him to death. We affirmed his conviction and
sentence in Wertz v. State, 374 Ark. 256, 287 S.W.3d 528 (2008). The relevant facts as we
recounted in Wertz’s direct appeal are as follows:
On the morning of December 31, 1986, Kathy and Terry Watts were found
dead in their Ash Flat home by Kathy’s mother, Judy Bone. Ms. Bone found their
almost one-year-old son, alive, near his father’s body. During the investigation into
the Wattses’ deaths, it was discovered that a child-custody matter regarding another
child was ongoing between Terry Watts and Wertz’s then-wife, Belinda. Ultimately,
Wertz became the primary suspect, and, the same day that the bodies were
discovered, investigators traveled to Oklahoma, where the Wertzes resided, to
inquire.
At that time, Wertz told investigators that he and Jamie Snyder, Jr., the son of
a friend, spent the night at Wertz’s home on December 30, 1986. Wertz claimed that
he had been sick that evening and that he had gone to the Tinker Air Force Base
clinic the next day for treatment, which records corroborated. It appears from the
record that, despite having suspects, police neither arrested nor charged anyone in
connection with the murders until much later.
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In spring 2001, David Huffmaster of the Sharp County Sheriff’s Department
began to review the case file on the Wattses’ murders after being contacted by Kathy
Watts’s sister, Chris Lindner, at a school function. In spring 2002, Huffmaster
essentially reopened the case and, over the course of the next few years, conducted
interviews of some of the persons previously interviewed and involved in the original
investigation. Huffmaster’s interviews of both Belinda Stewart, who had been married
to Wertz at the time of the crimes, but had since divorced him and remarried, and
Jamie Snyder, Jr., yielded statements that led to an arrest warrant being issued for
Wertz on April 27, 2006. On April 28, 2006, a felony information was filed, charging
Wertz with two counts of capital murder.
Id. at 258–59, 287 S.W.3d at 530-33.
On January 16, 2009, Wertz filed his Rule 37.5 petition in the Sharp County Circuit
Court alleging that his retained trial counsel’s, Greg Bryant’s, performance was
constitutionally deficient and asserting twenty-three allegations of ineffective assistance of
counsel. On April 9-10, 2012, the circuit court conducted a hearing. On May 17, 2012,
the circuit court denied Wertz’s petition. Wertz now brings this appeal and presents two
issues for review: (1) the circuit court erred in denying Wertz’s Rule 37 petition because
Wertz received ineffective assistance of counsel in the guilt phase of his trial; and (2) the
circuit court erred in denying Wertz’s Rule 37 petition because Wertz received ineffective
assistance of counsel in the sentencing phase of his trial.
“On appeal from a circuit court’s ruling on a petitioner’s request for Rule 37 relief, this
court will not reverse the circuit court’s decision granting or denying post-conviction relief
unless it is clearly erroneous. E.g., Prater v. State, 2012 Ark. 164, at 8, 402 S.W.3d 68, 74. A
finding is clearly erroneous when, although there is evidence to support it, the appellate court
after reviewing the entire evidence is left with the definite and firm conviction that a mistake
has been committed. Id., 402 S.W.3d at 74.” Mason v. State, 2013 Ark. 492, at 1–2, ___
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S.W.3d ___, ___.
Our standard of review requires that we assess the effectiveness of counsel under the
two-prong standard set forth by the Supreme Court of the United States in Strickland v.
Washington, 466 U.S. 668 (1984). Claims of ineffective assistance of counsel are reviewed
under the following standard:
A convicted defendant’s claim that counsel’s assistance was so defective as to require
reversal of a conviction has two components. First, the defendant must show that
counsel’s performance was deficient. This requires showing that counsel made errors
so serious that counsel was not functioning as the “counsel” guaranteed the defendant
by the Sixth Amendment. Second, the defendant must show that the deficient
performance prejudiced the defense. This requires showing that counsel’s errors were
so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
Unless a defendant makes both showings, it cannot be said that the conviction resulted
from a breakdown in the adversary process that renders the result unreliable.
Burton v. State, 367 Ark. 109, 111, 238 S.W.3d 111, 113 (2006) (quoting Strickland, 466 U.S.
at 687).
The reviewing court must indulge in a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance. Id. The petitioner claiming
ineffective assistance of counsel has the burden of overcoming that presumption by identifying
the acts and omissions of counsel which, when viewed from counsel’s perspective at the time
of trial, could not have been the result of reasonable professional judgment. See id. Therefore,
Wertz must first show that counsel’s performance fell below an objective standard of
reasonableness and then that counsel’s errors actually had an adverse effect on the defense. Id.
Wertz must satisfy both prongs of the test, and it is not necessary to determine whether counsel
was deficient if Wertz fails to demonstrate prejudice as to an alleged error. Kelley v. State,
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2011 Ark. 54, ___ S.W.3d ___.
Further, with respect to an ineffective-assistance-of-counsel claim regarding the decision
of trial counsel to call a witness, such matters are generally trial strategy and outside the
purview of Rule 37.1. Banks v. State, 2013 Ark. 147. Where a petitioner alleges ineffective
assistance of counsel concerning the failure to call witnesses, it is incumbent on the petitioner
to name the witness, provide a summary of the testimony, and establish that the testimony
would have been admissible into evidence. Moten v. State, 2013 Ark. 503 (per curiam). In
order to demonstrate prejudice, the petitioner is required to establish that there was a
reasonable probability that, had counsel performed further investigation and presented the
witness, the outcome of the trial would have been different. Hickey v. State, 2013 Ark. 237,
___ S.W.3d ___. Trial counsel must use his or her best judgment to determine which
witnesses will be beneficial to the client. Id. Nonetheless, such strategic decisions must still
be supported by reasonable professional judgment. Id. Finally, “[w]hen assessing an attorney’s
decision not to call a particular witness, it must be taken into account that the decision is
largely a matter of professional judgment which experienced advocates could endlessly debate,
and the fact that there was a witness or witnesses that could have offered testimony beneficial
to the defense is not in itself proof of counsel’s ineffectiveness. Huls v. State, [301 Ark. 572, 785
S.W.2d 467 (1990)]; Dumond v. State, 294 Ark. 379, 743 S.W.2d 779 (1988).” Johnson v. State,
325 Ark. 44, 49, 924 S.W.2d 233, 236 (1996).
Points on Appeal
I. Ineffective Assistance of Counsel: Guilt Phase
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For his first point on appeal, Wertz makes several arguments regarding ineffective
assistance of counsel at the guilt phase. Specifically, Wertz asserts that Bryant should not have
worked alone, but should have retained a second attorney to assistance him in handling
Wertz’s case as prescribed by the American Bar Association (hereinafter ABA) guidelines.
Further, Wertz asserts that Bryant took $35,000 from Wertz that was intended for the express
use of hiring a second attorney, Jeff Rosenzweig. Wertz contends that because Bryant failed
to retain co-counsel and failed to retain necessary services, Bryant was constitutionally
deficient on seven subpoints:
1. Bryant failed to review the physical evidence held by the State.
2. Bryant failed to retain a forensic investigator to review the physical evidence.
3. Bryant failed to retain and have a forensic pathologist to review the autopsy results.
4. Bryant failed to properly prepare and present evidence on the “time and distance”
argument.
5. Bryant failed to investigate Wertz’s contention that the footprint on the door of the
home was too small to be Wertz’s shoe.
6. Bryant failed to interview the following witnesses who had knowledge relevant to
Wertz’s defense: Mark Sealey (crime scene technician), Jeff Qualls (Sharp County
coroner at the time of the murders), Jamie Snyder’s ex wife, and countless individuals
Wertz knew over his lifetime who should have been called.
7. Bryant failed to spend sufficient time with Wertz to prepare him to testify at trial
and enable him to understand the nature of the trial process.
Pretrial Investigation
Wertz’s first three subpoints assert that Bryant’s pretrial investigation was deficient.
First, Bryant did not properly investigate the physical evidence. Second, Bryant did not hire
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a forensic investigator to examine the physical evidence including the shotgun, the shoe print,
the victim’s front door, shot gun shells, and the shot gun pattern on the front door. Third,
Bryant did not retain a forensic pathologist to review the autopsy reports. Wertz asserts that
because Bryant did not perform an adequate investigation including retaining forensic experts,
Wertz was prejudiced. The State responds that Wertz has failed to demonstrate that Bryant’s
representation was deficient and asserts that Wertz’s claims are conclusory.
In reviewing an assertion of ineffective assistance of counsel based on failure to
investigate, a petitioner must describe how a more searching pretrial investigation would have
changed the results of his trial. Fernandez v. State, 2011 Ark. 418, 384 S.W.3d 520. There
is a strong presumption that trial counsel’s conduct falls within the wide range of reasonable
professional assistance, and the burden is entirely on the claimant to provide facts that
affirmatively support his claims of prejudice. Shipman v. State, 2010 Ark. 499 (per curiam).
Neither conclusory statements nor allegations without factual substantiation are sufficient to
overcome the presumption and cannot provide a basis of postconviction relief. Id. General
assertions that counsel did not aggressively prepare for trial are not sufficient to establish an
ineffective-assistance-of-counsel claim. Id.
We now turn to the circuit court’s order denying Wertz’s claim regarding Bryant’s pre-
trial investigation. The circuit court’s order stated:
The court finds this allegation [of lack of investigation] is a conclusory statement
by petitioner and as such, cannot be the basis of postconviction relief. Sparkman v.
State, 373 Ark. 45, 281 S.W.3d 277 ( 2008). There was testimony petitioner spent
time with the lead investigator going over evidence in Sharp County as well as having
evidence reviewed by the State Crime Lab.
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....
Petitioner is making conclusory statements without offering any proof and as such,
cannot be the basis of post-conviction relief. Sparkman, supra. Petitioner’s allegations
here are highly questionable, even assuming such an analysis was possible. Petitioner
claims an expert should have been retained to test a shotgun ( which was found in
1987), which no longer existed at the time of petitioner’s arrest.
....
Petitioner has asserted that defense counsel failed to procure an independent
medical examiner to rebut the testimony of Dr. Charles Kokes concerning lividity and
time of death of Kathy Watts. This allegation is conclusory and not supported by any
proof demonstrating that an independent medical examiner would have rebutted the
testimony of Dr. Kokes or how the proceedings would have been different had such
a witness been called. As such, this allegation fails and cannot be the basis for
post-conviction relief. Sparkman, supra.
Here, Wertz contends the circuit court erred and claims that had Bryant retained these
forensic experts, Bryant would have discovered exculpatory evidence.
However, the record demonstrates that Wertz made only general assertions that do not
provide sufficient factual substantiation for his claims of prejudice. Wertz has made conclusory
allegations and has failed to demonstrate that a more searching investigation would have
changed the results of his trial. In reviewing the circuit court’s order, we find no error as to
this claim.
“Time and Distance” Defense
Wertz’s fourth subpoint of error during the guilt phase alleges that Bryant rendered
ineffective assistance of counsel when Bryant failed to present evidence of an alternative “time
and distance” argument that would demonstrate the physical impossibility that he committed
the crimes. Wertz contends that Bryant performed a “shoddy investigation” and failed to
adequately investigate the route, weather conditions, and vehicle driven from Guthrie,
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Oklahoma to Ash Flat, Arkansas. Further, Wertz contends that if Bryant had been properly
prepared for trial, Bryant would have been able to demonstrate that the trip could not have
taken place during the time frame the State asserted and that the State’s timeline and Wertz’s
co-defendant’s, Snyder’s, timeline were inconsistent.
The State responds that the circuit court should be affirmed because Bryant reasonably
presented evidence of Wertz’s “time and distance” defense as well as through the cross-
examination of multiple witnesses and his own witnesses.
In denying Wertz’s claim, the circuit court held that
[t]he weather conditions on or about the time of the murders was in evidence at trial.
Bryant, while not having a representative from the actual car manufacturer, put on
testimony that the one-way trip from Oklahoma to Ash Flat trip took two tanks of
gasoline. Consequently, the court further finds Bryant acted reasonably in the
interviews and made reasonable efforts in attempting to locate and interview witnesses
whose testimony was potentially exculpatory.
Wertz asserts that the circuit court erred. To prevail, Wertz must describe how a more
searching pretrial investigation would have changed the results of his trial. Fernandez v. State,
2011 Ark. 418, 384 S.W.3d 520. Here, the record demonstrates that Bryant cross-examined
the following witnesses about the time of death of the victims which went to discredit the
State’s timeline: Arkansas State Police Sergeant Steve Huddleston, former Sharp County Chief
Deputy Dennis Burton, and Joe Stidman, a reserve officer with the Sharp County Sheriff’s
Office. Huddleston, Burton, and Stidman all testified regarding their involvement in the
investigation, the Polaroid pictures of the crime scene, and the arrival time of Mark Sealey,
the medical examiner technician, who came to retrieve the bodies. Additionally, Dr. Charles
Kokes testified about the estimated time of death and the Polaroid pictures that were taken
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at the scene. Bryant cross-examined each of these witnesses regarding the timeline that Wertz
argues was not adequately addressed at trial. Additionally, Bryant presented his own witness,
Tyson Spradlin, his associate and assistant, regarding the time it took to travel from Ash Flat,
Arkansas, to Guthrie, Oklahoma. Spradlin testified about the make and model of his car, the
gas used, the fastest route, and the time it took him to travel. Accordingly, Bryant put
evidence before the jury refuting the State’s timeline of the case. Based on our standard of
review, we cannot say the circuit court clearly erred.
Boot/Footprint
For his fifth subpoint of error alleging ineffective assistance of counsel during the guilt
phase of the trial, Wertz asserts that Bryant was ineffective for failing to investigate that the
footprint on the Wattses’s door used in the State’s prosecution could not have been his
footprint because it was too small and the pattern did not match the soles of his boots. The
circuit court held that
[t]he allegation of deficient conduct by not calling an expert with regard to a shoe
print not matching the size of petitioner fails because the circumstances regarding the
evidence was before the jury.
At trial, during his cross-examination of Huffmaster, Wertz established that he wore
a size 13 shoe and the footprint found was a size 9. Here, the record from the Rule 37
hearing demonstrates that Wertz has failed to present evidence to support his claim and that
he makes conclusory allegations. In reviewing the circuit court’s ruling on this claim, we find
no error.
Failure to Interview Witnesses
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Wertz’s sixth subpoint of error in the guilt phase is that he received ineffective
assistance of counsel when Bryant failed to present the following witnesses: Mark Sealey, Jeff
Qualls, Jamie Snyder’s ex-wife (the accomplice’s ex-wife), and countless individuals whom
Wertz knew. The circuit court denied Wertz’s argument on this point and held,
According to the testimony at the evidentiary hearing, Bryant was not able to
locate Mark Sealey, however, the substance of his testimony regarding his opinion as
to time of death was put before the jury. Additional testimony concerning the
coroner’s report was also presented at the evidentiary hearing, however, the report
corroborated Dr. Kokes’ estimated time of death.
...
Petitioner alleges that trial counsel failed to adequately investigate the physical
evidence held by the State of Arkansas, theorizing that an adequate investigation would
have disclosed that items of physical evidence were exculpatory to the guilt of
petitioner and that physical evidence could have been used by defense counsel to
attack the credibility of the State’s chief investigator, the alleged accomplice James
Snyder, Jr. and petitioner’s ex-wife, Belinda Wertz, whose testimony was adverse to
petitioner. The court finds this allegation is a conclusory statement by petitioner and
as such, cannot be the basis of postconviction relief. Sparkman v. State, 373 Ark. 45,
281 S.W.3d 277 (2008). There was testimony petitioner spent time with the lead
investigator going over evidence in Sharp County as well as having evidence reviewed
by the State Crime Lab.
In reviewing this claim, “[i]t is incumbent on . . . [Wertz] . . . to name the witness,
provide a summary of the testimony, and establish that the testimony would have been
admissible into evidence.” Shipman, 2010 Ark. 499, at___, ___ S.W.3d ___, ___. In order
to demonstrate prejudice, Wertz was required to establish that there was a reasonable
probability that, had counsel performed further investigation and presented the witness, the
outcome of the trial would have been different. Hickey, 2013 Ark. 237, ___ S.W.3d ___.
At the Rule 37 hearing, Wertz did not call any of these witnesses or submit affidavits with
their testimony. Thus, Wertz asserts no more than conclusory statements in this regard, and
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we affirm the circuit court on this claim.
Failure to Prepare Wertz
For his final allegation of ineffective assistance of counsel at the guilt phase, Wertz
claims that Bryant failed to spend sufficient time with Wertz to prepare him to testify and
enable him to understand the trial process. An attorney’s advice to his or her client is not
grounds for an ineffective-assistance-of-counsel claim. Whether a defendant testifies is not
a basis for postconviction relief. Dansby v. State, 347 Ark. 674, 679, 66 S.W.3d 585, 588
(2002). Further, the accused has the right to choose whether to testify on his own behalf.
Chenowith v. State, 341 Ark. 722, 19 S.W.3d 612 (2000) (per curiam). Counsel may only
advise the accused in making the decision, and the decision to testify is purely one of strategy.
Id. Therefore, we affirm the denial of Wertz’s claim on this point.
Based on the discussion above, we do not find that the circuit court erred. Wertz did
not provide support for his conclusory claims that counsel was ineffective. Likewise, there has
been no showing that Bryant committed any specific error that prejudiced the defense because
Wertz did not specify with facts how the defense was prejudiced. As discussed infra, based on
Strickland, Wertz must show that, but for counsel’s errors, the fact-finder would have had a
reasonable doubt respecting guilt and that the decision reached would have been different
absent the errors. In reviewing the record before us and Wertz’s argument, we are
unpersuaded that Wertz has met his burden, and we affirm the circuit court’s denial of this
claim.
II. Ineffective Assistance of Counsel: Sentencing Phase
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For his second point on appeal, Wertz contends that the circuit court erred when it
denied Wertz’s claim that he received ineffective assistance of counsel during the sentencing
phase of his trial because Bryant did not adequately investigate and present mitigation
evidence. Citing Strickland v. Washington, 466 U.S. 668 (1984); Sanford v. State, 342 Ark. 22,
25 S.W.3d 414 (2000); and Wiggins v. Smith, 539 U.S. 510 (2003), Wertz asserts that Bryant
had an absolute duty to fully investigate all possible mitigating circumstances despite Wertz’s
instructions. Wertz contends that this failure to investigate fulfills both prongs of Strickland
– deficient performance and prejudice – and urges this court to reverse the circuit court.
The State responds that Wertz mischaracterizes Bryant’s performance and testimony
at the Rule 37 hearing, as Bryant did investigate and present mitigation evidence. Further,
the State responds that Wertz’s argument is without merit because the record demonstrates
that Wertz specifically instructed Bryant to not investigate and present mitigation evidence.
Finally, the State asserts that we should affirm the circuit court because Wertz has failed to
demonstrate prejudice.
In reviewing an assertion of ineffective assistance of counsel for the failure to call a
certain witness, the objective is to determine whether the failure resulted in actual prejudice
that denied the petitioner a fair trial. Moten v. State, 2013 Ark. 503 (per curiam). The decision
to call or not to call a particular witness is largely a matter of professional judgment. The fact
that there was a witness or witnesses who could have offered beneficial testimony is not, in
itself, proof of counsel’s ineffectiveness. Noel v. State, 342 Ark. 35, 26 S.W.3d 123 (2000).
Further, in reviewing an assertion of ineffective assistance of counsel based on counsel’s failure
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to investigate and present mitigation evidence, the failure to conduct any investigation will
not pass the constitutional standard we require; however, reasonable strategic choices do not
rise to the level of satisfying Strickland. See Sanford v. State, 342 Ark. 22, 25 S.W.3d 414
(2000). In Sanford we held that, the attorney’s “failure to investigate caused the jury not to
have before it all the available significant mitigating evidence” and further held that such
failure raised “a reasonable probability that the result of the sentencing proceeding would have
been different if competent counsel had presented and explained the significance of all the
available evidence.” Id. 342 at 34, 25 S.W.3d at 422 (citing Williams v. Taylor, 529 U.S. 362
(2000)).
Finally, in order to satisfy Strickland, Wertz must meet both prongs, deficient
performance and prejudice. This requires showing that counsel made errors so serious that
counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth
Amendment. See Stiggers v. State, 2014 Ark. 184, ___ S.W.3d ___ (internal citations omitted).
Prejudice must be established by demonstrating that there is reasonable probability that, had
counsel performed further investigation and presented the witness, the outcome of the trial
would have been different. With these standards in mind, we turn to the circuit court’s order
and its denial of Wertz’s claim on his second point:
Petitioner alleges Bryant failed to interview witnesses who could have provided
mitigating evidence for the petitioner at the punishment stage of the trial. As stated by
the court in the court’s Findings of Facts and Conclusions of Law 3 above, the court
finds that Bryant may have been deficient in his representation of his client in the
mitigation stage of his trial by not calling at least one other witness, not a family
member, who could have testified as to a good trait of petitioner. The court finds that
this omission did not prejudice the petitioner to the extent that the decision reached
by the jury would have been different.
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To review the circuit court’s order and correctly determine this issue, we must look
at all the evidence adduced at trial and at the Rule 37 hearing. Howard v. State, 367 Ark. 18,
238 S.W.3d 24.
At trial, during the sentencing phase, Bryant presented two mitigation witnesses: Steve
Huddleston and Wertz’s wife, Judy Wertz. First, Huddleston testified that Wertz may not
have known that the victims’ one-year old baby was in the house at the time of the murders,
in an attempt to convince jurors that one of the aggravators had not been met. Second,
Bryant called Judy and she testified regarding their courtship; that Wertz married her as she
had been a widow; and Wertz was religious, was a hard worker, treated people personally and
professionally with respect, provided a stable and loving home, was a grandfather to her three
grandchildren who lived next door to them in Florida, and was interested in music.
At the Rule 37 hearing, Bryant testified that Wertz did not give him names of
individuals to call as mitigation witnesses and was not forthcoming with personal information
or his life history. Bryant further testified that through his handling of the case, he discovered
friends and co-workers of Wertz’s, but assessed that none of them would have provided
favorable testimony for Wertz. Additionally, Bryant testified that he contacted Wertz’s
children. Wertz’s son was not willing to testify on Wertz’s behalf and Wertz’s daughter
attended the trial, but once she arrived she changed her mind and was not interested in
testifying on his behalf. Bryant also stated that Wertz’s brother would not have been favorable
on Wertz’s behalf. Further, Judy Wertz’s daughter was not willing to testify on Wertz’s
behalf. Finally, Bryant testified that Wertz instructed Bryant to not investigate or present
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mitigation evidence and also that Wertz did not want to take the stand in either the guilt or
the sentencing phase.1 Bryant also testified that Wertz had told Bryant he would rather be
executed than spend the remainder of his life in jail.
Also at the Rule 37 hearing, Wertz testified that he did not instruct Bryant to not put
on or investigate mitigation evidence and also testified that Bryant never explained the
mitigation process to him. Wertz further testified that Bryant did not keep him informed.
Judy testified that she understood that Rosenzweig was going to handle the mitigation but
1
We note that Wertz’s waiver is contained in the trial record:
DEFENSE COUNSEL: Judge, there are two things I want to put on the record.
The first one is that early on into this - my representation
of Mr. Wertz he instructed me not to conduct a
mitigation investigation. And I don’t think it’s necessary
that I go on record as to the reasons why.
THE COURT: It’s up to him.
MR. BRYANT: He instructed me not to go into any mitigating events
anyway but there - as opposed to an investigation which
--that encompasses the whole different matter and the
other thing, Your Honor is that Mr. Wertz, both at the
guilt phase and now at the penalty phase has decided not
to take the witness stand.
THE COURT: Is that correct?
DEFENDANT: Sir, what?
THE COURT: Is that correct?
DEFENDANT: Yes.
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was not aware that there were two different phases at trial.
Additionally, at the Rule 37 hearing, in addition to the two mitigation witnesses at
trial, Wertz presented testimony from three additional witnesses: Ed Briggs, Stacy
Worthington Chism, and Teri Chambers. First, Briggs testified that he had known Wertz for
over thirty years, that the two had met in Vietnam, and that Briggs relied on Wertz in the
field in Vietnam. Briggs also testified to a story about Wertz protecting a child and making
sure he was safe after an ambush. Several years later, the two were both employed as police
officers together, and Briggs testified about Wertz having helped him and fellow officers on
the scene of a traffic stop when he called for assistance.
Second, Chism testified that she was a mitigation specialist with the Arkansas Public
Defender’s Commission and, in preparation for Wertz’s Rule 37 hearing, investigated Wertz’s
history. She testified regarding the investigation that she would have performed at trial
including but not limited to, family history, Wertz’s first wife, Wertz’s children, military
experience, work history, mental retardation, psychological evaluation, school history, former
teachers, and photos of his family history. Chism also testified regarding photos she had
discovered during her investigation including, but not limited to, Wertz as a child, Wertz with
his children, Wertz with his first wife, Wertz in Vietnam, Wertz with his current wife, Judy,
and newspaper clippings from when Wertz was a swimmer in high school. The photos were
introduced into evidence.
Third, Chambers, an attorney with the Arkansas Public Defender Commission, Capital
Conflicts Office, testified as to the ABA Guidelines regarding the investigation of mitigation
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evidence. She testified about the importance of investigating a defendant’s history and
presenting that information to the jury.
Turning to Wertz’s argument on appeal, Wertz asserts that his case is analogous to
Sanford, alleges that Bryant abdicated his duty to investigate, and argues that the outcome
would have been different if the jury had been fully informed of the various mitigating factors.
However, this argument is flawed for two reasons. First, unlike the record in Sanford, the
record in this case demonstrates that Bryant presented some mitigation evidence. In Sanford,
at the Rule 37 hearing, Sanford’s counsel
largely conceded that he did little in putting on proof of mitigation during the penalty
phase, and that the reasons may have been because he was ‘quite disappointed’ in the
jury’s guilty verdicts, and ‘he was tired.’ In fact, while he was well aware that, during
the penalty phase, the prosecutor painted Sanford as a remorseless, heartless,
cold-blooded person, [Sanford’s counsel] guessed “he did not do anything” to counter
the State’s presentation in the penalty phase. Moreover, when asked by the trial court
if he intended to ask for AMCI 1009—the capital murder, mitigation instruction based
on mental retardation—Howard responded, ‘Yes, Your Honor, I had not even . . .
thought about it, but I am quite sure I am going to offer that.’
....
From the colloquy between the trial court and counsel, it became obvious that,
although he could have offered additional evidence at the penalty stage, [Sanford’s
counsel] had made no plans to offer any more evidence except the testimony of
Sanford’s parents.
....
[Sanford’s counsel] admitted he made no effort to obtain Sanford’s school records, jail
records, medical records, or family history. While he had a social worker available to
him, Howard never considered asking the worker to assist him in developing
mitigation.
Id., at 32, 25 S.W.3d at 421.
Here, Bryant did present mitigation evidence. Accordingly, Wertz’s case is
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distinguishable from the Sanford case.
Second, we do not find Wertz’s case analogous to Sanford because at Wertz’s Rule 37
hearing, Wertz failed to present potential mitigation evidence that would have likely caused
the jury to reach a different result. At the Rule 37 in Sanford, extensive mitigation evidence
was presented that had been omitted from Sanford’s trial:
Sanford’s school records showed Sanford had been in special education, and had been
considered mildly mentally retarded during much of his time in school. Sanford was
shown to have a good record with only one disciplinary incident. His medical history
reflects he almost suffocated to death as a child when a load of cotton seed fell on him;
Sanford’s mother opined Sanford acted a “bit slower” after the cotton-seed incident.
Later he suffered a blow to the head with a two-by-four wielded by his sister. Proof
also available, but not investigated by [Sanford’s counsel], showed siblings and other
family members to be either slow or retarded.
Id., 342 at 33, 25 S.W.3d at 421.
In contrast, at Wertz’s Rule 37 hearing, little potential mitigating testimony was
presented. Wertz presented three mitigation witnesses that did not testify at the first trial,
Briggs, Chism and Chambers, and the record fails to demonstrate that there was a reasonable
probability that the jury would have reached a different result based on this Rule 37
testimony. Briggs stated that he would have testified regarding his relationship with Wertz,
Wertz’s military service, and redeeming personal qualities through personal stories. However,
the record also demonstrates that Wertz had lied about military service and recognition, even
forging military records, and if Briggs had testified, then the State would have been able to
cross-examine him about Wertz’s dishonesty.
Further, although Chism testified about how she would conduct her mitigation
investigation and the evidence she had discovered about Wertz, including the introduced
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photos, this testimony did not amount to specific mitigation evidence demonstrating that
Wertz was prejudiced.2 Chism testified regarding the family history, the cousins, the work
history, and the “50 years of life that were not covered by the testimony of Judy Wertz” but
did not present any specific evidence that would likely change the outcome. Finally,
Chambers did not provide any testimony specific to Wertz; rather, she only discussed the
ABA guidelines and the investigation that should have been conducted.
Here, this is not a situation where counsel totally failed to investigate and put forth
mitigation evidence as in Sanford. Bryant produced two mitigation witnesses who testified
about Wertz’s general good character, his work ethic, his love for and involvement with his
family, and the fact that Wertz was not aware that the victims’s one-year old son was at the
scene when the murders took place. Also, despite whether counsel was deficient on
investigating and presenting sufficient mitigation, Wertz’s case is distinguishable from Sanford’s
case because, Wertz has failed to present specific evidence to demonstrate prejudice arose and
demonstrate a reasonable probability that the information uncovered with further investigation
would have changed the outcome.
We next turn to Williams v. Taylor, 529 U.S. 362 (2000), which the Sanford decision
relied heavily upon. Wertz’s case is also distinguishable from Williams. In Williams, the
evidence was much more substantial than in the present case:
2
At the Rule 37 hearing, the State introduced a psychologist’s report as the witness was
ill and unable to attend the hearing. The report provided that Wertz did not display any
significant psychiatric symptoms, including PTSD. The report also stated that Wertz had no
previous history for any significant psychiatric impairments. Finally, the report stated that
Wertz would likely not make a good witness on his own behalf.
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Existing documents in Williams dramatically described mistreatment, abuse, and
neglect during [the appellant’s] early childhood, as well as testimony that he was
‘borderline mentally retarded,’ had suffered repeated head injuries, and might have
mental impairments organic in origin. Other omitted evidence showed that the
appellant did not advance beyond sixth grade in school, his parents had been
imprisoned for the criminal neglect of the appellant and his siblings, he had been
severely and repeatedly beaten by his father, he was in the custody of the social services
bureau for two years during which he had a stint in an abusive foster home, and he was
returned to the custody of his parents after they were released from prison. In addition,
the appellant had received commendations in prison for helping to crack a prison drug
ring and for returning a guard’s missing wallet, and prison guards were willing to testify
that he was among the inmates least likely to act in a violent or dangerous way.
Williams v. State, 347 Ark. 371, 379, 64 S.W.3d 709, 716 (citing Williams v. Taylor, 529 U.S.
at 370).
Also, in support of his claim, Wertz refers us to the United States Supreme Court’s
decision in Wiggins v. Smith, 539 U.S. 510 (2003). However, Wertz’s case is also
distinguishable from Wiggins. In Wiggins, the mitigating evidence counsel failed to discover
was “powerful”:
Wiggins experienced severe privation and abuse in the first six years of his life while in
the custody of his alcoholic, absentee mother. He suffered physical torment, sexual
molestation, and repeated rape during his subsequent years in foster care. The time
Wiggins spent homeless, along with his diminished mental capacities, further augment
his mitigation case.
Wiggins, 539 U.S. at 534.
The Supreme Court held that “[g]iven both the nature and the extent of the abuse petitioner
suffered, we find there to be a reasonable probability that a competent attorney, aware of this
history, would have introduced it at sentencing in an admissible form.” Id. at 535.
Having reviewed Wertz’s ineffective-assistance-of-counsel claim regarding the
investigation of mitigation evidence, we find no merit in Wertz’s argument. Wertz contends,
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with no factual substantiation, the outcome would have been different if Bryant had
investigated and presented mitigation evidence. “When a defendant challenges a death
sentence, the question is whether there is a reasonable probability that, absent the errors, the
sentencer would have concluded that the balance of aggravating and mitigating circumstances
did not warrant death. Hill v. Lockhart, 28 F.3d 832 (8th Cir. 1994) (citing Strickland v.
Washington, supra ).” Williams v. State, 347 Ark. 371, 379, 64 S.W.3d 709, 716. Wertz has
failed to meet this burden, and based on our standard of review, we find no error and affirm.
Affirmed.
Special Justice ANDREW FULKERSON and HART, J., concur in part and dissent in part.
GOODSON, J., not participating.
ANDREW FULKERSON, Special Justice, concurring in part and dissenting in
part. I concur with the majority’s conclusion that appellant, Steven Victor Wertz, did not
receive ineffective assistance of counsel during the guilt phase of his trial. However, I would
hold that Wertz received ineffective assistance of counsel during sentencing, In appeals of
post-conviction proceedings, we will not reverse unless a circuit court’s decision is clearly
erroneous. State v. Barrett, 371 Ark. 91, 95, 263 S.W.3d 542 546 (2007). The circuit court’s
conclusion that Wertz waived the mitigation investigation and defense is clearly erroneous.
Therefore, I respectfully dissent.
In Coulter v. State, this court observed:
The constitutional guarantee of effective assistance of counsel extends to the sentencing
phase of the defendant’s trial. Counsel’s failure to investigate and present substantial
mitigating evidence during the sentencing phase may constitute ineffective assistance of
counsel. Counsel is obligated to conduct an investigation for the purpose of ascertaining
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mitigating evidence, and the failure to do so is error. Such error, however, does not
automatically require reversal unless it is shown that, but for counsel’s errors, there is a
reasonable probability that the sentence would have been different. When reviewing a
claim of ineffectiveness based upon failing to present adequate mitigating evidence, we
must view the totality of the evidence—both that adduced at trial and that adduced in the
postconviction proceeding.
343 Ark. 22, 29, 31 S.W.3d 826, 830 (2000) (internal citations omitted). While the decision not
to investigate or present mitigating evidence can be considered a matter of trial tactics or strategy,
“a ‘total abdication of duty’ to prepare a mitigation case ‘should never be viewed as permissible
trial strategy.’” Sanford v. State, 342 Ark. 22, 31, 25 S.W.3d 414, 420 (2000) (quoting Pickens v.
Lockhart, 714 F.2d 1455 (8th Cir. 1983)). In Sanford, again quoting from Pickens, the court stated:
The lawyer also has a substantial and important role to perform in raising mitigating
factors both to the prosecutor initially and to the court at sentencing. This cannot
effectively be done on the basis of broad general emotional appeals or on the strength of
statements made to the lawyer by the defendant. Information concerning the
defendant’s background, education, employment record, mental and emotional stability,
family relationships, and the like, will be relevant, as will mitigating circumstances
surrounding the commission of the offense itself. Investigation is essential to fulfillment
of these functions.
Id. at 33–34, 25 S.W.3d at 422.
Stacy Worthington Chism, a mitigation specialist for the Arkansas Public Defender
Commission, testified during the Rule 37 hearing and described the mitigation evidence that
she was able to assemble on behalf of Wertz. This included documents and photographs from
childhood, his baby book, school records, swim-team medals and newspaper clippings,
certificates related to his career as a law enforcement officer, and photographs of Wertz with
his children and his grandchildren. None of this evidence was offered during the sentencing
phase of his trial. Chism testified that “[t]he main objective in a sentencing phase is you tell the
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life story of the defendant. What you are doing is trying to save his life by humanizing him.”
The majority, addressing only the prejudice prong of Strickland, concludes that
“although Chism testified about how she would conduct her mitigation investigation and the
evidence she had discovered about Wertz . . . this testimony did not amount to specific
mitigation evidence demonstrating that Wertz was prejudiced.” This conclusion, however,
entirely misses the point. As this court stated in Sanford, information concerning the defendant’s
background, education, employment record, mental and emotional stability, family
relationships, and the like, will be relevant. The evidence demonstrated prejudice by showing
what an effective attorney would have investigated and presented to humanize Wertz to the
jury.
In this case, based on the limited mitigating evidence presented, which defense counsel
purportedly offered against Wertz’s wishes, the jury did not find any mitigating circumstances. The
clear import of Chism’s evidence would have been to humanize Wertz to the jury. The
effective use of mitigation evidence is all the more important in a state such as Arkansas in
which it takes only one juror to be touched by one or more mitigating factors and change a
sentence from death to life without the possibility of parole. The very limited mitigation
evidence offered at Wertz’s trial was far from what, as decidedly shown by Chism’s testimony,
could have been discovered and offered. A thorough and proper mitigation investigation such
as that described by Chism could have done much to “humanize” Wertz in the eyes of the
jury. It is important to recognize that, but for defense counsel’s failure to investigate, there is
a reasonable possibility that a mitigating circumstance would have been found and that a single
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juror would have chosen life. It may have been a valid, strategic decision to not call a witness
who trial counsel believed would be unhelpful. The voluminous mitigating evidence collected
by Mitigation Specialist Stacy Worthington Chism could have been offered through virtually
any witness (Mrs. Wertz, for example, who did read a prepared statement during the
sentencing phase), as the Rules of Evidence do not apply to admission of mitigating
circumstances. Ark. Code Ann. § 5-4-602(4)(B)(i) (Repl. 2013). After a finding by the jury
of aggravating circumstances, the failure to have presented any meaningful mitigating
circumstances makes the death penalty all but inevitable.
The evidence demonstrated that defense counsel’s performance was deficient. The
United States Supreme Court has emphasized that “Strickland does not require counsel to
investigate every conceivable line of mitigating evidence no matter how unlikely the effort
would be to assist the defendant at sentencing,” and does not “require defense counsel to
present mitigating evidence at sentencing in every case.” Wiggins v. Smith, 539 U.S. 510, 533
(2003). Nevertheless, it is well established that strategic choices made after less than complete
investigation are reasonable only to the extent that reasonable professional judgments support
the limitations on investigation, and a decision not to investigate must be directly assessed for
reasonableness in all the circumstances. Id.
Defense counsel’s failure to conduct an investigation of mitigating circumstances meant
that Wertz’s purported waiver of a mitigation investigation was not made knowingly and
voluntarily. Though not addressed by the majority, the State argues that Wertz made a decision
to forego mitigating evidence. This is the first case in which this court has been asked whether
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a capital defendant can waive defense counsel’s investigation of mitigation evidence. Wertz’s
purported waiver is contained in the trial record:
DEFENSE COUNSEL: Judge, there are two things I want to put on the record. The first
one is that early on into this—my representation of Mr. Wertz he instructed me not to
conduct a mitigation investigation. And I don’t think it’s necessary that I go on record
as to the reasons why.
THE COURT: It’s up to him.
DEFENSE COUNSEL: He instructed me not to go into any mitigating events anyway but
there—as opposed to an investigation which—that encompasses the whole different
matter and the other thing, Your Honor is that Mr. Wertz, both at the guilt phase and
now at the penalty phase has decided not to take the witness stand.
THE COURT: Is that correct?
DEFENDANT: Sir, what?
THE COURT: Is that correct?
DEFENDANT: Yes.
The colloquy among defense counsel, the court, and Wertz is a discussion of two
distinct subjects: Wertz’s decision not to conduct a mitigation investigation and Wertz’s
decision to not take the witness stand. It is evident from this exchange that the court, in asking
whether defense counsel was correct, was asking whether Wertz had decided not to take the
stand, and Wertz affirmed that this was correct. Wertz’s response was decidedly not a waiver
of a mitigation investigation. Thus, the manner in which this exchange was conducted renders
it impossible to ascertain the wishes of Wertz about how to conduct the sentencing phase of
his trial; the existence of a waiver of mitigation by Wertz is far from clear. This on-the-record
exchange is wholly insufficient for a finding that Wertz waived a mitigation investigation or
defense.
Defense counsel testified that Wertz directed him to conduct no mitigation defense.
Wertz denied that allegation. The assertion by defense counsel that Wertz did not desire a
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mitigation defense is suspect given the conduct of Mrs. Wertz, who met with defense counsel
and another attorney and discussed mitigation issues and a fee of $35,000. A short time
thereafter, Mrs. Wertz forwarded payment in the amount of $35,000. Her other payments
were in the amounts of $10,000, $15,000, $10,000, and $5,000, respectively. The $35,000
payment following the meeting starkly contradicts defense counsel’s assertion. The assertion
that Wertz did not desire a mitigation defense is further clouded by the fact that defense
counsel did, in fact, put on some very limited evidence in mitigation with no objection from
Wertz.
A capital defendant may use his own judgment to his detriment and thwart his counsel’s
efforts to investigate or present mitigation issues. Singleton v. Lockhart, 962 F.2d 1315, 1322 (8th
Cir. 1992). However, defense counsel and the court must take steps to ensure that this is a
knowing and voluntary waiver of an important right. Id. It is essential that defense counsel and
the court ensure that the decision of the defendant to not investigate or present mitigation
issues is a knowing and voluntary waiver. This showing of a knowing and voluntary waiver
is absent from both the trial record and the Rule 37 hearing. The failure by counsel to clearly
enunciate on the record the fact that Wertz prevented or limited an investigation into potential
mitigation evidence and limited any use of mitigation evidence at the sentencing phase of the
trial violates the due-process rights of Wertz. Similarly, the failure of the trial court to ensure
that the defendant did intend to prevent or limit counsel’s investigation or use of mitigating
evidence is a violation of due process.
In Schriro v. Landrigan, 550 U.S. 465 (2007), the United States Supreme Court pointed
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out they had not previously found an “informed and knowing” requirement in the decision
to not offer evidence. But in Landrigan’s habeas petition, the question was not whether an
“informed and knowing” requirement should be imposed, but whether the state court was
reasonable in finding that existing federal law did not require such requirement at the time of
his postconviction hearing. The Landrigan Court also noted that if there were such a
requirement, it would not be in issue for that defendant. It is clear from a review of the
transcript that Landrigan, did not want to offer mitigation evidence. The questions by counsel
and the court were unequivocal. That is not the case with Wertz.
There must be some standard established in this court as to how a circuit court should
accommodate a defendant who wishes to waive all or part of a mitigation defense or
investigation. The United States Supreme Court has recognized that “the penalty of death is
qualitatively different from a sentence of imprisonment, however long.” Woodson v. North
Carolina, 428 U.S. 280, 305 (1976). This qualitative difference “calls for a greater degree of
reliability when the death sentence is imposed.” Lockett v. Ohio, 438 U.S. 586, 604 (1978).
Justice O’Connor stated in a concurring opinion that “extraordinary measures” should be
followed to ensure due process in a capital case. See Eddings v. Oklahoma, 455 U.S. 104, 118
(1982). The determination of whether a capital defendant has made a knowing and voluntary
waiver of a mitigation investigation or defense must be viewed in light of this heightened
standard of review.
Several courts have opined on whether a defendant may waive the investigation into
mitigating evidence. See State v. Johnson, 401 S.W.3d 1,15 n.8 (Tenn. 2013) (collecting cases).
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The Tennessee Supreme Court, in Zagorski v. State, 983 S.W.2d 654, 660 (Tenn. 1998),
established a three-prong process for situations in which a defendant wishes to forego
mitigation in a capital trial. Defense counsel must inform the court outside the presence of the
jury of this decision by the defendant. To protect the defendant’s interests, and to preserve a
complete record, the trial court must (1) inform the defendant of his right to present mitigating
evidence and make a determination on the record whether the defendant understands this right
and the importance of presenting mitigating evidence in both the guilt phase and the
sentencing phase of trial; (2) inquire of both the defendant and counsel whether they have
discussed the importance of mitigating evidence, the risks of foregoing the use of such
evidence, and the possibility that such evidence could be used to offset aggravating
circumstances; (3) after being assured that the defendant understands the importance of
mitigation, inquire of the defendant whether he or she desires to forego the presentation of
mitigating evidence. This procedure will ensure that the accused has intelligently and
voluntarily made a decision to forego mitigating evidence.
Alabama has adopted the Zagorski procedure for waiver of mitigation. Whitehead v. State,
955 So. 2d 448, 454 (Ala. Crim. App. 2006). The Utah Supreme Court has held that a
defendant may waive mitigation and affirmed such a waiver following a “lengthy and searching
inquiry” into whether the defendant was aware of the nature and purposes of mitigation
evidence and whether defendant was making a knowing and voluntary waiver. State v. Maestas,
299 P.3d 892, 961 (2012).
The petitioner appears to seek a bright-line rule that a capital defendant cannot waive
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a mitigation investigation for the reason that a defendant cannot make a knowing and informed
decision without a full and complete investigation of all possible facts and circumstances that
could be considered as mitigating to a juror. A New Jersey court has held that a capital
defendant cannot waive mitigation, and defense counsel may present mitigation evidence over
the objection of the defendant. See State v. Hightower, 518 A.2d 482 (N.J. 1986). This position
is contrary to the basic principle that the defense belongs to the defendant. “The defendant,
and not his lawyer or the State, will bear the personal consequences of a conviction. It is the
defendant, therefore, who must be free personally to decide whether in his particular case
counsel is to his advantage. And although he may conduct his own defense ultimately to his
own detriment, his choice must be honored out of “that respect for the individual which is the
lifeblood of the law.” Illinois v. Allen, 397 U.S. 337, 350-51 (Brennan, J., concurring). A
defendant in a capital case may knowingly and voluntarily waive the investigation of possibly
mitigating circumstances and may waive or limit the presentation of possibly mitigating
circumstances to a jury.
In sum, Wertz’s counsel was ineffective for failing to conduct an investigation into
mitigating evidence or presenting sufficient evidence of a knowing and voluntary waiver of
mitigation so that it can be said that Wertz knowingly and voluntarily waived his right to
present mitigating evidence. As demonstrated by the evidence adduced at the Rule 37 hearing,
defense counsel failed to present easily obtained mitigating evidence. Further, Arkansas does
not currently have a protocol or procedure for determining the voluntariness of a defendant’s
waiver of mitigation. This court should require that any waiver of investigation or presentation
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of mitigating circumstances in a capital trial be a knowing and voluntary waiver. To ensure a
valid waiver a trial court should make an inquiry on the record as to whether the defendant
understands the nature and purposes of mitigation evidence. The trial court should further
make inquiry to ascertain whether the defendant knowingly and intelligently makes any waiver
of an investigation or presentation of evidence related to mitigating evidence. The court should
then make specific findings on the record as to whether any waiver by the defendant is
knowing and voluntary.
HART, J., joins in this concurrence in part and dissent in part.
Taylor Law Partners, LLP, by: W.H. Taylor, William B. Putman, and Jeff Mitchell, for
appellant.
Dustin McDaniel, Att’y Gen., by: Ashley Argo Priest and Rebecca Bailey Kane, Ass’t Att’y
Gen., for appellee.
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