Wertz v. State, CR–12–655.

• Decision Date: 22 May 2014
• Docket Number: No. CR–12–655.,CR–12–655.
• Citation: 434 S.W.3d 895,2014 Ark. 240
• Parties: Steven Victor WERTZ, Appellant v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

2014 Ark. 240

434 S.W.3d 895

Steven Victor WERTZ, Appellant

v.STATE of Arkansas, Appellee.

No. CR–12–655.

Supreme Court of Arkansas.

May 22, 2014.

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.

KAREN R. BAKER, 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.

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, 430 S.W.3d 759, 761.

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, 104 S.Ct. 2052, 80 L.Ed.2d 674 (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, 104 S.Ct. 2052).

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 assistanceof 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, 2011 Ark. 504, 2011 WL 5995530.

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, 428 S.W.3d 446. 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

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 Quails (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 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...