*1
degree
similarity
Clearly,
cient
between the
the evidence is relevant and
to be
and the sexual
evidence
introduced
falls within the pedophile exception to Rule
E.g.,
conduct of the defendant.
White v. 404(b). Moreover, Jeffries
to
failed
dem-
State,
595, 242
367 Ark.
S.W.3d 240
pursuant
onstrate error
to Rule 403 be-
(2006). There must also be an “intimate
probative
cause the
value of establishing
relationship”
perpetrator
between the
D.J.,
similarities between the rapes of
prior
and the victim of the
act.
Id. G.B.,
here,
with
C.C.
that of the victim
State,
122,
7-8, Z.B.,
Hendrix v.
Ark.
outweighed any alleged prejudice.
Therefore,
all testified that Jeffries had been sexually with
inappropriate them as minors when
they were in his care. Both D.J. and G.B.
testified that Jeffries force would oral sex them,
on
and D.J. testified that Jeffries
him
raped
anally.
also
D.J.
stated
This evidence only illustrates Jeffries’s minors,
depraved sexual instinct for but
also finding demonstrates his method for opportunity to make sexual contact
with them. *3 LLP, Partners,
Taylor Law W.H. Putman, B. and Jeff Taylor, William Mitchell, for appellant. McDaniel, Gen., Att’y by Ashley
Dustin
Kane,
Bailey
Argo Priest and Rebecca
Gen.,
Att’y
appellee.
Ass’t
BAKER,
KAREN R.
Justice.
*4
19, 2007,
County
July
Sharp
jury
_|jOn
Wertz,
appellant,
convicted
Steven Victor
capital
of two counts of
murder and sen-
tenced him to death. We affirmed his
State,
conviction and sentence in
(2008).
256,
374 Ark.
At that Wertz told Jr., that he Jamie Snyder, son of friend, at spent night 30, on home December 1986. Wertz claimed he had been sick that eve- ning gone and that he had to the Tinker day Air Force Base clinic the next treatment, which records corroborated. that, appears despite It the record from having suspects, police neither arrested charged anyone nor connection with the murders until much later. | 2001, 164, spring E.g., David Huffmaster of ous. Prater v. 2012 Ark. sin County 8, 68, Sharp Department Sheriffs at finding S.W.3d 74. A when, to review the case file on the began clearly although erroneous there is being it, murders after contacted Wattses’ support appellate evidence to court sister, Lindner, by Kathy Watts’s Chris reviewing after the entire evidence is left spring at a school function. with the definite firm conviction that a essentially reopened the Huffmaster Id., mistake has been committed. and, next case over the course of the few at 74.” Mason v.
years, conducted interviews of some of
430|j¡S.W.3d
1-2,
persons previously
interviewed and
requires
Our standard of review
original
investigation.
in the
involved
that we assess the effectiveness of counsel
Huffmaster’s interviews of both Belinda
under the twо-prong
standard set forth
Stewart, who had been married to Wertz
Supreme
Court of the United States in
crimes,
at the time of the
but had since
v. Washington,
Strickland
466 U.S.
remarried,
him
divorced
and Jamie
104 S.Ct.
“On from a circuit reviewing court’s court in must ruling petitioner’s request dulge strong on a for Rule 37 in a presumption that coun relief, range this court will not reverse the circuit sel’s conduct falls within the wide granting denying post- court’s decision or professional reasonable assistance. Id. relief clearly petitioner claiming conviction unless it is errone- The ineffective assis- professional a matter of largely over- sion is has the burden of tance of counsel advocates judgment experienced which by identifying presumption coming that debate, which, endlessly and the fact that could the acts omissions there was a witness or witnesses perspective at from counsel’s when viewed testimony beneficial to trial, could have offered could not have been the time proof not in itself of coun judgment. the defense is professional of reasonable result State, Therefore, ineffectiveness. Huls v. [301 must first show sel’s Wertz See id. (1990)]; Du fell below an Ark. 785 S.W.2d performance that counsel’s State, 743 S.W.2d reasonableness and mond standard of objective (1988).” Johnson v. actually had then that counsel’s errors 44, 49, 233, 236 Id. Wertz 924 S.W.2d on the defense. adverse effect test, it prongs satisfy must both Appeal on Points determine whether necessary to
is not
to dem-
if Wertz fails
counsel was deficient
Assistance of
I.Ineffective
error.
alleged
as to an
prejudice
onstrate
Counsel: Guilt Phase
|42011 Ark.
2011 WL
Kelley v.
point
appeal,
first
on
IflFor
arguments
inef-
regarding
makes several
Further,
an inef
respect
with
guilt
of counsel at the
fective assistance
regard
claim
fective-assistance-of-counsel
Specifically,
asserts
phase.
of trial counsel to call a
ing the decision
alone,
Bryant should not have worked
but
witness,
generally
matters are
trial
such
attorney
should have retained a second
*6
purview
the
of Rule
strategy and outside
handling
him in
case as
assistance
Wertz’s
State,
v.
sults of his trial. Fernandez v.
an
procure
independent
counsel failed
testimony
Boot/Footprint however, report corroborated Dr. subpoint alleging For his fifth of error Kokеs’ estimated time of death. ineffective assistance trial, guilt phase of the Wertz asserts that alleges Petitioner trial counsel Bryant was ineffective for to inves- failing adequately failed to investigate the tigate footprint that the on the Wattses’s physical by evidence held the State of door used in the prosecution State’s could Arkansas, theorizing adequate that an footprint not have been his because it was investigation would have disclosed that pattern
too small and the
did not match
physical
items of
evidence
exculpa-
were
the soles of his boots. The circuit court
tory
guilt
petitioner
to the
and that
held that
physical evidence
could
been used
allegation
by
of deficient
[t]he
conduct
by defense counsel to attack the credibil-
calling
expert
not
with regard to a
ity of the State’s chief investigator, the
print
shoe
matching
peti-
size of
alleged accomplice
Snyder,
James
Jr.
tioner fails because the circumstances
ex-wife,
Wertz,
and petitioner’s
Belinda
regarding the evidence was before the
testimony
whose
peti-
was adverse to
jury.
tioner. The court finds
allegation
this
conclusory
statement
petitioner and
trial,
At
during his cross-examination of
such,
as
cannot be
postcon-
the basis of
Huffmaster, Wertz established that he
Sparkman
viction relief.
footprint
wore a size 13 shoe and the
found
Failure to Interview Witnesses *9 and establish that the testimony would | sixth subpoint of error have been admissible into evidence.” inWertz’s guilt 4, phase Shipman, 499, is that he received ineffective 2010 Ark. 2010 WL Bryant assistance of counsel when failed to 5185781. In order to preju- demonstrate dice, present following witnesses: Mark required Wertz was to establish that Sealey, Quails, Snyder’s that, Jeff Jamie ex-wife there was a probability reasonable (the ex-wife), accomplice’s and performed investiga- countless had counsel further
904 witness, that argument, unpersuaded we are Wertz the out- presented tion and burden, and we affirm the has met his been differ- would have of the trial come of this claim. 237, circuit court’s denial Ark. 428 S.W.3d Hickey, 2013 ent. did hearing, 37 Wertz 446. At the Rule II. Assistance Counsel: Ineffective witnesses or submit any not call of these Sentencing Phase Thus, testimony. their affidavits with conclusory than appeal, no more on Wertz point Wertz asserts his second 112For we affirm regard, in this and court erred when contends that the circuit statements In claim. court on this that he received the circuit it denied Wertz’s claim of counsel
ineffective assistance Prepare Wertz Failure to phase of his trial because sentencing adequately investigate and Bryant did not allegation of inef For his final Citing evidence. present guilt counsel at the fective assistance of 668, 466 Washington, Strickland v. U.S. Bryant to сlaims that failed phase, Wertz (1984); 2052, L.Ed.2d 674 104 S.Ct. 80 pre to sufficient time with Wertz spend State, 342 Ark. 25 S.W.3d Sanford him to testify him to and enable pare (2000); Smith, 539 Wiggins 414 An attor process. understand the trial 2527, 156 U.S. 123 S.Ct. L.Ed.2d 471 her client is not ney’s advice to his or (2003), Bryant asserts that had an Wertz for an ineffective-assistance-of- grounds duty fully investigate possi- absolute to all counsel claim. a defendant testi Whether mitigating despite ble circumstances relief. postconviction fies is not a basis for that Wertz’s instructions. Wertz contends State, Ark. Dansby v. investigate fulfills both this failure to (2002). Further, 585, 588 the ac prongs perform- of Strickland —deficient right cused has the to choose whether prejudice urges this court ance and —and testify on his own behalf. Chenowith v. to reverse the circuit court. (2000) 19 S.W.3d curiam). may only advise (per Counsel mischar- responds The State decision, making the accused in Bryant’s performance acterizes and testi- testify purely one of the decision to hearing, Bryant as mony at the Rule 37 Therefore, we affirm the strategy. Id. mitigation evi- investigate did point. Further, denial of claim on this Wertz’s responds dence. the State argumеnt is without merit because above, we do Based on the discussion specif- the record demonstrates that Wertz circuit court erred. not find that investigate ically instructed to not provide support not for his con- Wertz did present mitigation Finally, evidence. clusory claims that counsel was ineffective. affirm the State asserts that we should Likewise, showing no there has been circuit court because Wertz has failed any specific error that Bryant committed prejudice. demonstrate prejudiced the defense because Wertz did an assertion of ineffective reviewing with facts how the defense was specify call infra, on assistance of counsel for the failure to prejudiced. As discussed based Strickland, that, witness, objective certain is to deter- must show but for errors, mine whether the failure resulted actual counsel’s the fact-finder would have prejudice petitioner that denied the a fair respecting guilt had a reasonable doubt (per trial. Moten v. and that the decision reached would have curiam). The decision to сall or not to call different absent the errors. In re- been *10 a matter of particular largely witness is viewing the record before us and Wertz’s
905
punishment
The fact
that
tioner at the
judgment.
stage of the
professional
who could
there was a witness or witnesses
by
trial. As stated
the court in the
not, in
testimony
offered beneficial
have
Findings
court’s
of Facts and Conclu-
itself, proof of counsel’s ineffectiveness.
above,
sions of Law 3
the court finds
State,
35,
342
123
Noel v.
Ark.
26 S.W.3d
Bryant
that
may have been deficient in
(2000). Further,
reviewing
in
an assertion
representation
his
his client in the
ineffective assistance of counsel based
mitigation stage of
by
his trial
not call-
|1sto investigate and
on counsel’s failure
witness,
ing at least one other
not a
evidence, the failure to
present mitigation
member,
family
who could have testified
any investigation
pass
conduct
will not
the
good
petitioner.
as to a
trait of
howev-
require;
constitutional standard we
court finds
this omission did not
er,
strategic choices do not rise
reasonable
prejudice
petitioner
the
to the extent
satisfying
level of
Strickland. See
to the
jury
the decision reached
State,
22,
v.
342 Ark.
25 S.W.3d
Sanford
would have been different.
that,
414
we held
Sanford
|14Toreview the circuit court’s order and
investigate
“failure to
caused
attorney’s
issue,
correctly determine this
we must
to have
it all the avail-
jury
before
look at all the evidence adduced at trial
significant mitigating
able
evidence” and
and
hearing.
at the Rule 37
Howard v.
further held that such failure raised “a
Petitioner failed to in- case, pro- he discovered friends and co- terview witnesses who could Wertz’s, mitigating peti- vided evidence for the workers of but assessed that none *11 First, testified that he had Briggs favorable bers. provided have of them would Additionally, Bryant testimony thirty years, known Wertz for over for Wertz. Vietnam, chil- he contacted Wertz’s in and that testified that the two had met willing not to testi- son was in dren. Wertz’s on in the field Briggs relied Wertz daughter behalf and Wertz’s fy story on Wertz’s Briggs also testified to Vietnam. trial, once she arrived she attended the but protecting making a child and about Wertz not interested her mind and was changed sure he was safe after an ambush. Sever- Bryant also in on behalf. testifying his later, employed two were both years al not have stated that brother would Wertz’s Briggs tes- police together, as officers behalf. Fur- been favorable on Wertz’s having helped him and tified about Wertz ther, not will- Judy daughter was Wertz’s stop on the of a traffic fellow officers scene Finally, ing testify on behalf. Wertz’s when he called for assistance. Bryant testified that Wertz instructed Second, testified that she was Chism or Bryant investigate to not mitigation specialist with the Arkansas 1^mitigation and also that Wertz evidence and, in Public Defender’s Commission in either the did not want to take stand hearing, Rule 37 preparation Wertz’s Bryant guilt sentencing phase.1 or the investigated history. She testified Wertz’s Bryant had told also testified that Wertz regarding investigation that she would spend than he would rather be executed performed including at trial but not jail. life in remainder of his to, family history, limited Wertz’s first hearing, Also at the Rule 37 Wertz testi- wife, children, military experience, Bryant to not fied that he did not instruct retardation, history, psycho- mental work mitigation on or evidence put investigate evaluation, history, logical school former Bryant and also testified that never ex- teachers, photos family history. of his plained mitigation process to him. regarding photos Chism testified she also not Wertz further testified that did in- investigation had discovered her keep Judy him informed. testified that to, cluding, but not limited Wertz as a Rosenzweig going she understood that child, children, Wertz with his Wertz with |1fiwas mitigation to handle the but wife, Vietnam, in his first Wertz phases aware that there were two different wife, Judy, newspaрer with current at trial. clippings from when Wertz was a swimmer Additionally, hearing, at the Rule 37 high photos school. The were intro- addition to the two witnesses at duced into evidence. trial, presented testimony from Third, Chambers, attorney an with the Briggs, three Ed additional witnesses: Chism, Commission, Stacy Worthington and Teri Cham- Arkansas Public Defender opposed which— We note that Wertz's waiver is contained in as the trial record: encompasses the whole different Judge, thing, there are two matter and the other Your Honor Defense Counsel: Wertz, things put I want to on the record. The guilt phase that Mr. both at the early this-my first one is that on into penalty phase and now at the has decided representation of Mr. Wertz he instructed not to take the witness stand. mitigation investiga- me not to conduct a The Court: Is that correct? necessary tion. And I don’t it’s think Sir, Defendant: what? why. goI on record as to reasons The Court: Is that correct? up It's to him. The Court: Defendant: Yes. go He me not to into instructed Bryant: Mr. any mitigating anyway events but there— *12 Office, to the Capital testified as Conflicts investiga- regarding
ABA Guidelines
thе
admitted he made no
[Sanford’s counsel]
mitigation | ,7evidence. She testified
tion of
records,
effort to obtain Sanford’s school
investigating
importance
about
records,
records,
jail
medical
family
or
history
that in-
presenting
defendant’s
history. While he had a social worker
jury.
formation to the
him,
available to
Howard never consid-
asking
ered
the worker to assist him in
to
on
Turning
argument
appeal,
Wertz’s
developing mitigation.
analogous
Wertz asserts that his ease is
to
Sanford, alleges
abdicated his
Id.,
at
421.
S.W.3d at
duty
argues that
investigate,
Here, Bryant
did
mitigation evi-
outcome would have been different if the
Accordingly,
dence.
Wertz’s case is
jury
fully
had been
informed of the various
^distinguishable from the
case.
Sanford
However,
argu-
mitigating factors.
Second, we do not find
case
Wertz’s
First,
ment is flawed for two reasons.
un-
analogous to
because at Wertz’s
Sanford
Sanford,
like the record in
the record in
hearing,
Rule 37
Wertz failed to present
Bryant pre-
this case demonstrates that
potential mitigation evidence that would
In
sented some
evidence.
San-
likеly
jury
caused the
to reach a
ford,
hearing,
at the Rule 37
Sanford’s
different result. At the
Rule 37
San-
ford, extensive mitigation evidence was
largely conceded that he
little in
did
presented that had been omitted from San-
putting
proof mitigation during
on
trial:
ford’s
penalty phase,
may
and that the reasons
Sanford’s school records showed Sanford
‘quite disap-
have been because he was
education,
had been in special
and had
verdicts,
pointed’
jury’s guilty
mildly
been considered
mentally retard-
fact,
‘he
tired.’ In
was
while he was well
ed
much of his time in school.
that, during
penalty phase,
aware
Sanford was shown to
good
have a
rec-
prosecutor painted
Sanford as a re-
only
disciplinary
ord with
one
incident.
morseless, heartless,
per-
cold-blooded
history
His medical
reflects he almost
son,
guessed “he did
[Sanford’s counsel]
suffocated to death as a child when a
not do
anything”
counter the State’s
him;
load of cotton
fell
seed
on
San-
presentation
penalty phase.
in the
opined
ford’s mother
Sanford acted a
Moreоver,
by
when asked
the trial court
“bit slower” after the cotton-seed inci-
if he intended to ask for AMCI1009—the
dent. Later he suffered a blow to the
murder,
capital
mitigation instruction
with,
two-by-four
head
wielded
based on mental retardation —Howard
available,
sister. Proof also
but not in-
Tes,
Honor,
responded,
Your
I had not
vestigated
counsel],
[Sanford’s
it,
even ...
I
thought about
but
am
siblings
family
showed
and other
mem-
I
quite
going
sure
am
to offer that.’
bers to be either slow or retarded.
Id.,
From the between the trial counsel, contrast, court and it became obvious at Rule hearing, that, although potential mitigating testimony he could have offered ad- little ditional at penalty stage, presented. presented evidence three mitiga- plans testify had made no to tion witnesses that did not [Sanford’s counsel] trial, any Chambers, offer more except Briggs, evidence the testi- first Chism and mony parents. of Sanford’s and the record fails to demonstrate that sufficient miti- vestigating presenting that the probability reasonable there was a distinguishable case is gation, Wertz’s a different result reaсhed jury would have *13 because, has from Sanford’s case Wertz testimony. Briggs Rule 37 based on this specific evidence to dem- present failed to regard- would have testified that he stated and demonstrate prejudice onstrate arose Wertz, relationship with his Wertz’s ing informa- probability a reasonable that the service, redeeming personal and military further tion uncovered with stories. How- through personal qualities the outcome. changed would have ever, also demonstrates that the record and military Taylor, about service v. 529 had lied We next turn to Williams Wertz records, forging military even 120 S.Ct. 146 L.Ed.2d recognition, U.S. testified, (2000), the State which the decision relied Briggs if had then and Sanford heavily upon. case is also distin- him Wertz’s able to cross-examine would have been Williams, In guishable from Williams. dishonesty. about Wertz’s the evidence was much more substantial Further, although testified about Chism in case: than the mitigation in- how she would conduct her in |gpExisting documents Williams dra- vestigation and the evidence she had dis- mistreatment, abuse, matically described Wertz, including the intro- covered about ear- neglect appellant’s] and [the |13photos, testimony did not duced childhood, ly testimony as well as mitigation evidence specific amount retarded,’ mentally he ‘borderline was demonstrating prejudiced.2 that Wertz was injuries, repeated had suffered head and family histo- regarding testified Chism organic might impairments have mental cousins, history, work and the ry, the origin. in Other omitted evidence years of life that were not covered “50 appellant did not ad- showed Judy but did not testimony Wertz” school, in beyond grade vance sixth his present any specific evidence that would imprisoned been for the parents had Finally, outcome. likely change the and neglect appellant criminal his testimony provide any did not Chambers siblings, severely he had been and re- Wertz; rather, only dis- specific to she father, he in peatedly beaten his guidelines the ABA and the investi- cussed custody of the social services bureau conducted. gation that should been years during which he had a for two Here, this is not a situation where coun- home, in stint an abusive foster and he totally invеstigate put failed to sel custody to the par- was returned in mitigation forth evidence as from they pris- ents after were released Sanford. two witnesses Bryant produced addition, appellant on. had re- general good about who testified Wertz’s in prison ceived commendations for character, ethic, his work his love for helping prison drug ring to crack a family, fact involvement with his and the wallet, returning guard’s missing for was not aware that the vic- testify that Wertz prison guards willing were one-year old son was at the scene among tims’s that he was the inmates least Also, in place. likely dangerous when the murders took de- to act a violent or way. on in- spite whether counsel was deficient hearing, report the State introduced PTSD. The also stated that Wertz had
2. At the Rule 37 history any significant report previous psychi- ill psychologist’s as the witness was no Finally, report hearing. report impairments. atric stated and unable to attend the likely good provided display any sig- Wertz would not make a that Wertz did not including psychiatric symptoms, on his own behalf. nificant witness 371, 379, burden, 64 716. has failed to meet this v. Williams (2002) review, (citing Williams and based on our standard of we 1495). 120 S.Ct. Taylor, 529 U.S. find no error and affirm. Also, claim, re- support in of his Affirmed. Supreme to the States
fers us
United
Smith,
Wiggins
decision in
Court’s
Special Justice ANDREW
2527,
fectiveness
evidence,
tencing phase
we must
of his trial.
testified
adequate mitigating
Chism
objective
sentencing
main
in a
totality of the evidence—both
that “[t]he
view the
you
story
tell
phase
at trial and that adduced
is
that adduced
thej^life
you
doing
trying
defendant.
are
proceeding.
What
postconviction
him.”
by humanizing
to save his life
(2000)
22, 29, 31 S.W.3d
343 Ark.
omitted).
(internal
the de-
citations
While
majority, addressing only
preju-
investigate
present mitigat-
cision not to
or
Strickland,
prong
dice
concludes
can be considered a matter of
ing evidence
“although Chism testified about how she
“a ‘total abdication
strategy,
trial tactics or
mitigation investigation
would conduct her
case
duty"
prepare
about
and the evidence she had discovered
permissible
‘should never be viewed as
testimony
Wertz ...
did not amount
”
strategy.’
trial
specific mitigation
evidence demonstrat-
Sanford
(2000)
(quoting
ing
prejudiced.”
that Wertz was
This con-
*15
(8th
Lockhart,
Pickens v.
“require defense counsel to miti- Defendant: Yes. gating evidence at in sentencing every counsel, colloquy among The defense the Smith, Wiggins case.” 539 U.S. court, and Wertz is a discussion of two S.Ct. L.Ed.2d subjects: distinct Wertz’s decision not to (2003). Nevertheless, it is well established mitigation conduct a investigation strategic that choices made after less than Wertz’s decision tо not take the witness complete investigation are only reasonable stand. It exchange is evident from this to the extent that professional reasonable court, that asking in whether defense judgments support in- limitations on correct, counsel asking was was whether vestigation, and a decision not to investi- stand, Wertz had decided not to take the gate directly must be assessed for reason- and Wertz affirmed that this was correct. Id. in ableness all the circumstances. response decidedly was not a Thus,
Defense
mitigation
counsel’s failure to conduct an waiver of a
investigation.
investigation
mitigating
circumstances
the manner
in which
exchange
purported
meant
that Wertz’s
impossible
waiver of a
conducted renders it
to ascer-
mitigation investigation was not made
tain the wishes of
about how
trial;
knowingly
voluntarily. Though
conduct
sentencing phase
of his
majority,
mitigation
addressed
the State ar-
the existence of a waiver of
Similar-
due-process rights
Wertz.
This on-the-rec-
far from clear.
of the trial court to ensure
ly,
for a
the failure
whоlly insufficient
exchange is
ord
or
prevent
the defendant did intend to
in-
that
mitigation
waived a
finding that Wertz
of miti-
counsel’s
or use
limit
vestigation or defense.
pro-
evidence is a violation of due
gating
that Wertz di-
counsel testified
Defense
cess.
mitigation de-
to conduct no
rected him
Landrigan,
In Schriro v.
550 U.S.
allegation.
The
denied
fense. Wertz
(2007), the
913
104, 118,
Alabama has Wertz’s counsel was ineffective mitigation. cedure for waiver of for failing White conduct an into (Ala. mitigating presenting head v. 955 So.2d evidence or suffi- Crim.App.2006). Supreme knowing cient evidence of a voluntary Utah and may mitigation Court has held that a defendant waive waiver of so that' it can be said voluntarily knowingly and that Wertz mitigating evi- present right
waived his by the evidence As demonstrated
dence. hearing, the Rule 37 defense
adduced at easily obtained failed to Further, evidence. Arkansas
mitigating currently pro- or protocol
does not determining the voluntariness
cedure mitigation. waiver of This
of defendant’s any waiver of require should
court presentation |anof mitigat-
investigation or capital in a trial be a
ing circumstances voluntary To ensure
knowing and waiver.
a valid waiver a trial court should make
inquiry on the record as to whether the pur- nature
defendant understands the
poses evidence. The trial inquiry make to as-
court should further knowingly
certain whether the defendant intelligently any makes waiver of an
investigation or of evidence presentation mitigating
related to evidence. The court specific findings
should then make on the any
record as to whether waiver knowing voluntary.
defendant is
HART, J. concurrence in Joins
part part. dissent in App.
Mauricio Antonio LOPEZ-
DELEON, Appellant *19 Arkansas, Appellee.
STATE
No. CR-13-622. Arkansas. Appeals
Court
April