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Wertz v. State

Supreme Court of Arkansas

June 9, 2016

STEVEN VICTOR WERTZ, APPELLANT
v.
STATE OF ARKANSAS, APPELLEE

         MOTION TO RECALL DIRECT-APPEAL MANDATE

          Jenniffer Horan, Federal Public Defender, by: John C. Williams, Assistant Federal Public Defender, for appellant.

          Leslie Rutledge, Att'y Gen., by: Rebecca B. Kane, Ass't Att'y Gen., for appellee.

          ROBIN F. WYNNE, Associate Justice

         In 2007, Steven Victor Wertz was convicted of two counts of capital murder[1] by a Sharp County jury and sentenced to death. We affirmed his convictions on direct appeal. Wertz v. State, 374 Ark. 256, 287 S.W.3d 528 (2008). We subsequently affirmed the denial of his petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.5. Wertz v. State, 2014 Ark. 240, 434 S.W.3d 895. He has now filed a motion and supporting brief to recall the mandate entered following his direct appeal, in which he argues that this court's failure to sua sponte raise the issue of the submission of a single set of penalty-phase verdict forms following his conviction on two counts of capital murder[2] constitutes a defect or breakdown in the appellate process sufficient to justify recall of the mandate issued following the disposition of his direct appeal. We grant the motion, reverse his sentence of death, and remand for resentencing.

         The essential facts of the case, as recounted in our opinion on 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 [Joshua Watts], 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. In addition to Wertz, another suspect was also investigated. In 1989, Glenn Collins, an inmate at the Arkansas Department of Correction, wrote two letters to the chief of the Ash Flat Police Department in which he confessed to committing two murders in Ash Flat "some three years ago." However, after being interviewed, Collins was eliminated as a suspect because, according to one investigator, his story did not match the crime scene. It appears from the record that, despite having suspects, police neither arrested nor charged anyone in connection with the murders until much later.
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. He was tried by a jury, was convicted, and as already stated, was sentenced to death.

374 Ark. at 257B58, 287 S.W.3d at 530. During the guilt phase, the jury heard testimony that Wertz was aware at the time of the murders that Kathy and Terry had a one-year-old child who lived in the home, as well as testimony that Wertz told Jamie Snyder Jr. prior to the murders that "anyone in the home over the age of eight would need to be eliminated as a possible witness." Prior to its deliberations during the guilt phase of the trial, the jury was given two sets of verdict forms: one set for the count related to the murder of Terry Watts, and a second set for the count related to the murder of Kathy Watts. The jury rendered a verdict of guilty on each count.

         Arkansas Code Annotated section 5-4-603 requires a jury deliberating a possible sentence of death to complete three forms in addition to the verdict form. The first form requires the jury to determine whether any statutory aggravating factors exist beyond a reasonable doubt. The second form deals with the jury's findings regarding any existing mitigating factors. The third form requires the jury to determine whether any existing aggravating circumstances outweigh any existing mitigating circumstances and whether the aggravating circumstances justify a sentence of death. In the present case, after the sentencing-phase evidence had been submitted, the jury was given a single set of the section 5-4-603 forms. Form 1 listed two aggravating factors: (1) in the commission of the capital murder, Steven Victor Wertz knowingly created a great risk of death to a person other than the victim; and (2) the capital murder was committed for the purpose of avoiding or preventing an arrest or effecting an escape from custody. The jury indicated on the form that it found that both aggravating circumstances existed beyond a reasonable doubt at the time of the capital murder.[3] On Form 2, the jury found that there was no evidence of any mitigating circumstance.[4] On Form 3, the jury found (1) that one or more aggravating circumstances did exist, beyond a reasonable doubt, at the time of the commission of the capital murder; (2) the aggravating circumstances outweighed beyond a reasonable doubt any mitigating circumstances; and (3) the aggravating circumstances justify beyond a reasonable doubt a sentence of death. Form 4, the verdict form, gave the jury the option to impose a single sentence of either (A) life imprisonment without parole or (B) death. The jury voted unanimously to sentence Wertz to death.

         This court will recall a mandate and reopen a case only in extraordinary circumstances. Robbins v. State, 353 Ark. 556, 114 S.W.3d 217 (2003). To establish the extraordinary circumstances that would warrant the recall of a mandate or the reopening of a case, we have enumerated certain factors to be considered, namely (1) the presence of a defect in the appellate process, (2) a dismissal of proceedings in federal court because of unexhausted state-court claims, [5] and (3) the appeal is a death case that requires heightened scrutiny. Ward v. State, 2015 Ark. 62, at 2, 455 S.W.3d 830, 832. We have held that these factors are not necessarily to be strictly applied but rather that they serve as a guide in determining whether to recall a mandate. Nooner v. State, 2014 Ark. 296, 438 S.W.3d 233.

         Wertz first argues that the combined penalty-phase verdict forms violated the Sixth and Fourteenth Amendments to the United States Constitution by permitting the jury to sentence him to death without unanimously finding beyond a reasonable doubt each fact necessary to impose death. For support, he cites Ring v. Arizona, 536 U.S. 584 (2002). In Ring, the United States Supreme Court held that Arizona's capital sentencing procedure, in which, after a jury adjudication of guilt, the trial court, sitting alone, determined the presence or absence of aggravating factors necessary to impose the death penalty, violated the Sixth Amendment right to jury trial in capital prosecutions. The holding in Ring is inapplicable here, as it was the jury, not the trial court, which determined the presence or absence of mitigating factors. The issue presented here does not touch on Wertz's Sixth Amendment right to a trial by jury, as all phases of the trial were held before a jury, and unlike Ring, all findings during sentencing were made unanimously by the jury. Wertz's claim of a Sixth Amendment violation is without merit.

         Wertz next argues that the combined penalty-phase forms denied him the individualized sentencing and protection from invalid aggravating circumstances required under the Eighth Amendment to the United States Constitution. We find merit in this argument. In Woodson v. North Carolina, 428 U.S. 280 (1976) (plurality opinion), the court held that the Eighth and Fourteenth Amendments required an individualized sentencing procedure in capital cases. See Jurek v. Texas, 428 U.S. 262 (1976) (noting that the court held in Woodson that an individualized sentencing determination is required under the Eighth and Fourteenth Amendments). The Court stated in Woodson that "the fundamental respect for humanity underlying the Eighth Amendment . . . requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death." 428 U.S. at 304 (internal citation omitted) (emphasis added).

         Here, the submission of a single set of verdict forms deprived the jury of the opportunity to separately consider the circumstances surrounding each of the murders in determining the punishment to be assessed for each count. Thus, the submission of a single set of verdict forms makes it impossible to determine whether the jury applied the aggravator to Terry's murder, Kathy's murder, or both murders. The submission of a single set of forms was an error that impacts the validity of the death sentence imposed by the jury, as, under our law, it is necessary for an aggravating factor to be found to exist before a death sentence can be imposed, and we cannot say from this record to which count or counts of capital murder the aggravators were applied. This error conflicts with ...


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