Wertz v. State

• Decision Date: 18 September 2008
• Docket Number: No. CR 07-1155.,CR 07-1155.
• Citation: Wertz v. State, 374 Ark. 256, 287 S.W.3d 528 (Ark. 2008)
• Parties: Steven Victor WERTZ, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

287 S.W.3d 528

374 Ark. 256

Steven Victor WERTZ, Appellant, v. STATE of Arkansas, Appellee.

No. CR 07-1155.

Supreme Court of Arkansas.

September 18, 2008.

Gregory E. Bryant, Little Rock, for appellant.

Dustin McDaniel, Att'y Gen., by: Deborah Nolan Gore, Ass't Att'y Gen., for appellee.

PAUL E. DANIELSON, Justice.

Appellant Steven Wertz appeals from his convictions on two counts of capital murder and his sentence of death. He asserts four points on appeal: (1) that the evidence did not sufficiently corroborate the accomplice testimony; (2) that the jury erred in finding the existence of an aggravator during the sentencing phase; (3) that the jury erred in finding no mitigating circumstance; and (4) that various considerations should be taken into account during this court's review pursuant to Arkansas Rule of Appellate Procedure-Criminal 10 (2008). We affirm Wertz's convictions and sentence.

The facts, as derived from the record, are these. 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. 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,

I. Corroboration of Accomplice Testimony

For his first point, Wertz asserts that there was insufficient evidence to corroborate the accomplice testimony of Jamie Snyder, Jr. He contends that if Snyder's testimony were eliminated, the independent evidence remaining would eliminate Wertz as the perpetrator of the crimes. He further asserts that other evidence introduced at trial going to opportunity, method, and time of death, did not corroborate Snyder's testimony, and he points to the testimony he believes eliminates him as the perpetrator. The State responds that the evidence the prosecution presented of Wertz's motive, threats, and opportunity, as well as Wertz's conduct and statements before and after the murders, was more than adequate to connect him with the commission of the crimes.

Here, Wertz challenges the sufficiency of the State's evidence corroborating Snyder's testimony. During his trial, Wertz moved for a directed verdict, arguing that there was insufficient corroboration of Snyder's testimony. His motion was denied, and he again moved for a directed verdict on this basis after the defense rested. That motion, too, was denied. We treat a motion for directed verdict as a challenge to the sufficiency of the evidence. See Stephenson v. State, 373 Ark. 134, 282 S.W.3d 772 (2008). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. See id. Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. See id. On appeal, we view the evidence in the light most favorable to the State, considering only that evidence that supports the verdict. See id.

Wertz was convicted of two counts of capital murder. Under Arkansas law in 1986, a person committed capital murder if "with the premeditated and deliberated purpose of causing the death of any person, he causes the death of two (2) or more persons in the course of the same criminal episode[.]" Ark. Stat. Ann. § 41-1501(c) (Repl.1977 & Supp.1985). We have held that the premeditation and deliberation required may be formed in an instant. See Winston v. State, 372 Ark. 19, 269 S.W.3d 809 (2007); Shipman v. State, 252 Ark. 285, 478 S.W.2d 421 (1972). We have further observed that intent can rarely be proven by direct evidence; however, a jury can infer premeditation and deliberation from circumstantial evidence, such as the type and character of the weapon used; the nature, extent, and location of wounds inflicted; and the conduct of the accused. See Winston, supra.

A felony conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense. See Ark. Stat. Ann. § 43-2116 (Repl.1977).¹ Corroboration is not sufficient if it merely shows that the offense was committed and the circumstances thereof. See id. Corroborating evidence must be evidence of a substantive nature since it must be directed toward proving the connection of the accused with a crime and not directed toward corroborating the accomplice's testimony. See Johnson v. State, 366 Ark. 8, 233 S.W.3d 123 (2006). It need not be sufficient standing alone to sustain the conviction, but it must, independent from that of the accomplice, tend to connect to a substantial degree the accused with the commission of the crime. See Green v. State, 365 Ark. 478, 231 S.W.3d 638 (2006). The test for corroborating evidence is whether, if the testimony of the accomplice were completely eliminated from the case, the other evidence independently establishes the crime and tends to connect the accused with its commission. See id. While corroborating evidence may be circumstantial so long as it is substantial, evidence that merely raises a suspicion of guilt is insufficient to corroborate an accomplice's testimony. See id.

We begin by outlining Snyder's testimony. Snyder testified that on the day of the murders, he received a phone call from Wertz, during which Wertz told him that he needed "some help with the matter of Terry Watts." After meeting Wertz at the armory to turn in some National Guard gear, Snyder and Wertz went to Wertz's home, arriving between 4:00 and 4:30 p.m. Snyder stated that, while there, Wertz retrieved a shotgun from his home and put it in Snyder's mother's car, which Snyder was driving. They then left Wertz's home. Driving toward Guthrie, Oklahoma, where some of Terry Watts's relatives lived, Wertz told Snyder that he expected Terry Watts to be at the Guthrie home. According to Snyder, Wertz further explained that there would likely be five to eight people at the home, including children, and that "anyone over eight would need to be eliminated as a possible witness." When Snyder conveyed his concerns about "including anybody else, especially children[,]" Wertz told him that he "would take care of the children and that we would not abort and that I didn't want to make myself expendable." Upon driving down a road in Guthrie, Wertz told Snyder that "they" were not there and that he and Snyder "would head over to Arkansas." They did so, and during the trip, Wertz told Snyder that if they encountered any "law enforcement interference[,]" they "would abort the mission."

Upon arriving in Ash Flat near midnight, Snyder testified that he and Wertz exited the car, taking shotguns, and approached the front door of the home by its porch. He said that Wertz had him knock on the door, which Snyder did. Snyder stated that a male came to the door, looked out, and began to open the door, when Wertz stepped forward. At that time, the male, whom Snyder assumed was Terry Watts, slammed the door closed and yelled "Steve." At that time, according to Snyder, Wertz fired his shotgun, and Snyder quickly turned to leave. Snyder stated that he believed that Wertz then kicked the door and entered the house. While standing beside the front porch, Snyder heard two or three more shots.

Snyder testified that, as Wertz came out of the house after being inside for no more than five minutes, Snyder returned to the car. He stated that when Wertz entered the passenger's side of the car, he was laughing and said that "Kathy Watts had a nice body" or "words to that effect." Snyder said that he turned the car around and exited the property. After Snyder made a wrong turn, Wertz took over driving. Snyder testified that, during their return trip, Wertz told him: "[I]f there were any questions, we had spent the night at the-at his residence in Cushing. And that he had been ill as if with the flu. And that he would go to Tinker Air Force Base on sick call upon our return to give credibility to the alibi." Snyder said that they returned to Wertz's home "in the area of 7:00" the morning of December 31.

Our review...