Wertz v. State, 2014 Ark. 240

Wertz was convicted of two counts of capital murder and sentenced to death in Sharp County, Arkansas (2007).
The direct appeal referenced Wertz v. State (Arkansas Supreme Court, 2008) and summarized the Watts murders from December 31, 1986 in Ash Flat; Kathy and Terry Watts were the victims, with their nearly one-year-old son surviving.
Investigative timeline: Huffmaster reopened the Watts file in 2001-2002, interviews were conducted over subsequent years, and an arrest warrant issued for Wertz on April 27, 2006; information filed April 28, 2006.
Wertz filed a Rule 37.5 postconviction petition on January 16, 2009 alleging ineffective assistance of counsel in both guilt and sentencing phases; a hearing occurred April 9-10, 2012, and the circuit court denied relief on May 17, 2012.
The Court applied Strickland v. Washington two-prong analysis for ineffective assistance and affirmed the circuit court’s denial of Wertz’s Rule 37 petition for guilt-phase claims and for sentencing-phase mitigation claims; a concurrence/dissent discussed waiver of mitigation.
The record includes a noted waiver discussion where Wertz allegedly instructed counsel not to pursue mitigation, but the majority treated the waiver issue as not clearly established on the record.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Guilt-phase ineffective assistance claim based on counsel's workload and trial decisions	Wertz claims Bryant should have had co-counsel and hired forensic help	Bryant acted within professional judgment; claims are conclusory	No reversible error; claims lack factual substantiation
Guilt-phase mitigation/pretrial investigation adequacy (time and distance, footprints, etc.)	Bryant failed to investigate and present mitigating/preemptive evidence	Record shows some mitigation and reasonable cross-examination; claims lack prejudice	No reversible error; no showing of prejudice under Strickland
Guilt-phase failure to interview witnesses	Bryant did not interview key witnesses who could help Wertz	Counsel’s strategic decisions; witnesses not shown to be admissible or beneficial	No reversible error; lack of substantiating proof of prejudice
Guilt-phase failure to prepare Wertz to testify	Bryant failed to properly prepare Wertz for trial testimony	Decision to testify is strategic and Wertz chose not to testify	Denied; no error shown under Strickland
Sentencing-phase ineffective assistance regarding mitigation investigation and waiver	Bryant failed to investigate/present mitigating evidence; Wertz never knowingly waived mitigation	Wertz purportedly waived mitigation; Bryant presented some mitigation; record unclear	Affirmed; no prejudice shown; concurrence disputes waiver analysis

Strickland v. Washington, 466 U.S. 668 (1984) (establishes two-prong standard for ineffective assistance)
Burton v. State, 367 Ark. 109 (2006) (standard for reviewing postconviction ineffectiveness)
Fernandez v. State, 2011 Ark. 418 (2011) (requires showing prejudice with more than conclusory assertions)
Shipman v. State, 2010 Ark. 499 (2010) (prescribes need for factual substantiation in ineffectiveness claims)
Sparkman v. State, 373 Ark. 45 (2008) (conclusory allegations without proof cannot support relief)
Sanford v. State, 342 Ark. 22 (2000) (mitigation investigation duties; comparing to Sanford)
Williams v. State, 347 Ark. 371 (2002) (discusses substantial mitigating evidence at sentencing)
Wiggins v. Smith, 539 U.S. 510 (2003) (mitigating evidence must be reasonably investigated)
Hill v. Lockhart, 474 U.S. 52 (1985) (standard related to prejudice in guilty plea contexts (relevance to Strickland analysis))
Schriro v. Landrigan, 550 U.S. 465 (2007) (discusses waiver/informed decision aspects in mitigation context)
Zagorski v. State, 983 S.W.2d 654 (1998) (three-prong process for waiver of mitigation (Tenn.))
Woodson v. North Carolina, 428 U.S. 280 (1976) (death penalty requires heightened reliability)
Lockett v. Ohio, 438 U.S. 586 (1978) (mitigation considerations in capital sentencing)
Eddings v. Oklahoma, 455 U.S. 104 (1982) (importance of mitigating evidence in sentencing)
Sanford v. State, 342 Ark. 22 (2000) (recurring discussion on mitigation investigation)