Steven Victor WERTZ, Appellant v. STATE of Arkansas, Appellee
No. CR-07-1155
Supreme Court of Arkansas.
Opinion Delivered: June 9, 2016
2016 Ark. 249
Danielson and Wood, JJ., join.
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.
In 2007, Steven Victor Wertz was convicted of two counts of capital murder1 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 post-conviction relief pursuant to
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, whо 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 257-58, 287 S.W.3d at 530. During the guilt phase, the jury heard testimоny 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 сount 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.
This cоurt 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 thаt 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, 122 S.Ct. 2428, 153 L.Ed.2d 556 (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.
Here, the submission of a single set of verdict forms deprived the jury of the opportunity to separately consider the circumstancеs 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 the United States Supreme Court‘s requirement that capital sentencing procedures be especially reliable. Romano v. Oklahoma, 512 U.S. 1, 20-21, 114 S.Ct. 2004, 129 L.Ed.2d 1 (1994); Caldwell v. Mississippi, 472 U.S. 320, 323, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985).
Thе finding of error at trial does not end our analysis, as recall of the mandate is a narrow remedy, and it is necessary for us to determine whether the fact that this error was not addressed by this court on direct appeal constitutes a defect or breakdown in the appellate process sufficient to warrant recall of the mandate. We have defined an “еrror in the appellate process” as
an error alleged to have been made by this court in its appellate review of a death-penalty case ... such error is to be distinguished from an error that should have been raised to the trial court and could not be considered as falling within one of the so-called Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980) exceptions, or within our independent review of death cases pursuant to Rule 4-3 of the Arkansas Supreme Court Rules, and Rule 10 of the Arkansas Rules of Appellate Procedure—Criminal.
Nooner, 2014 Ark. 296, at 8, 438 S.W.3d at 239 (quoting Engram v. State, 360 Ark. 140, 148, 150, 151, 200 S.W.3d 367, 370, 372, 373 (2004)).
Although the murders occurred in 1986, Wertz was not tried until 2007 and his direct appeal was heard by this court in 2008. At that time, this court had a duty pursuant to
The motion to recall the mandate is granted, the sentence of death is reversed, and the matter is remanded for resentencing on both capital murder convictions.
Motion granted; death sentence reversed and remanded for resentencing.
Danielson and Wood, JJ., dissent.
Paul E. Danielson, Justice, dissenting.
I dissent. The parties’ arguments and the majority opinion focus on whether error occurred during the penalty phasе of the trial; however, I think that the error in this case, if there was one at all, occurred during the guilt phase. From the record before us, it is clear that Wertz was charged with two counts of capital murder and that the jury returned verdicts of guilt on two counts. It is not clear that he was actually convicted of both counts.6 As the majority acknowledges, Wertz was charged with capital murder pursuant to
For this reason, rather than rule on Wertz‘s motion to recall the direct-appeal mandate at this juncture, I would order supplemental briefing from the parties on the issue of whether a double-jeopardy
Rhonda K. Wood, Justice, dissenting.
I would deny Wertz‘s motion to recall the mandate because he cannot satisfy two of the three factors we traditionally use when deciding these motions. We first established these three factors in Robbins v. State:
- A decision by this court “on all fours legally with the issue presented“;
- A dismissal of a habeas petition by a federal district court to exhaust state claims; and
- A death-penalty case.
353 Ark. 556, 564, 114 S.W.3d 217, 222-23 (2003). We further stated that, in order to recall the mandate, there must be “extraordinary circumstances.” Id. We granted petitioner‘s motion in Robbins because these three factors were present: a prior case, Willett v. State, 322 Ark. 613, 911 S.W.2d 937 (1995) was on all fours legally; the federal district court had dismissed the habeas petition; and the death-penalty had been imposed. Importantly, Robbins was intended to be “one of a kind, not to be repeated.” Id.
We applied the Robbins factors in other cases as well. For example, we denied a motion to recall the mandate where the only factor present was the imposition of the death-penalty. Echols v. State, 360 Ark. 332, 338, 201 S.W.3d 890, 894 (2005). And we granted relief in Lee v. State, 367 Ark. 84, 238 S.W.3d 52 (2006). There, petitioner asked us to recall the mandate in his
The three factors changed again in Nooner v. State, 2014 Ark. 296, 438 S.W.3d 233. There, we said that the Robbins factors were “relevant” though that “strict satisfaction of all three factors was not required.” Id. at 9, 438 S.W.3d at 239. We also clarified “breakdown in the appellate process” to mean “an error alleged to have been made by this court during the course of its appellate review.” Id. However, we reaffirmed the principle that a motion to recall the mandate should “be used sparingly as a last resort ... [and] ‘held in reserve against grave, unforeseen contingencies.‘” Id. (citing Robbins, supra). We later denied petitioner‘s motion to recall the mandate when there was a problem with the mitigating-factor jury instruction because petitioner failed to demonstrate error. Id. at 20, 438 S.W.3d at 245.
I would return to the Robbins factors, which have been unnecessarily eroded. Yet even under the current formulation, only the third factor is present: the death-penalty has been imposed. The other two factors are missing. First, there was no breakdown in the appellate process. Nor is there a case on all fours legally.7 Sec-