Lead Opinion
hln 2007, Steven Victor Wertz was convicted of two counts of capital murder
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 Sheriffs Department began to review the case file on the Watts-es’ murders after being contacted by Kathy Watts’s sister, Chris Lindner, .at a school function. In spring 2002, Huff-master 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 cаpital murder. He was tried by a jury, was convicted, and as already stated, was sentenced to death.
Arkansas Code Annotated section 5-4-603 requires a jury deliberating a possible sentence of dеath to complete three forms in addition to the verdict form. The first form requires the. jury to .determine whether any statutory aggravating factors exist beyond a reasonable doubt. The second form deals with the jury’s findings regarding any existing mitigating factors. The third form requires the jury to determine whether any existing aggravating circumstances outweigh any existing mitigating circumstances and whether the aggravating circumstances justify a sentence of death. In the present case, after the sentencing-phase evidence had been submitted, the jury was given a single set of the section 5-4-603 forms. Form 1 listed two aggravating factors: (1) in the commission of the capital | ¿murder, Steven Victor Wertz knowingly created a great risk-of death to a person other than the victim; and (2) the capital murder was committed for the purpose of avoiding or preventing an arrest or effecting an escape from custody. The jury indicated on the form that it found that both aggravating circumstances existed beyond a reasonable doubt at the time of the capital murder.
This court will recall a mandate and reopen a case only in extraordinary circumstances. Robbins v. State,
Wertz first argues that 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 tо impose death. For support, he cites Ring v. Arizona,
Wertz next argues that the combined penalty-phase forms denied him the individualized sentencing and protection from invalid aggravating circumstances required under, the- Eighth Amendment to the United States Constitution. We find merit in this argument. In Woodson v. North Carolina,
17Here, the submission of a single set of verdict forms deprived the jury of the opportunity to separately consider the circumstances 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 appliеd 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,
The 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 аddressed 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 “error 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 errоr 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,
18Although the murders occurred in 1986, Wertz was not tried until 2007 and his direct appeal was heard by this court in 2008. At that timé, this court had a duty pursuant to Arkansas Supreme Court Rule 4-3(h) (2008) to review all rulings adverse to Wertz for prejudicial error. As no objection to the verdict forms was made at trial, there was no adverse ruling on this issue for this court to review. However, this court had an additional duty under Arkansas Rule of Appellate Procedure-Criminal 10(b)(ii) (2008) to review сases in which a sentence of death had been imposed to determine whether the trial court failed in its obligation to bring to the jury’s attention a matter essential to its determination of the death penalty. In Anderson v. State,
InThe motion to recall the mandate is granted, the sentence of death is reversed, and the matter is remanded for resentenc-ing on’ both capital murder convictions.
Motion granted; death sentence reversed and remanded for resentencing.
. At oral argument before this court) the State argued for the first timé that'Wertz was convicted of one count of capital -murder under section 41 — 1501(c). In supplemental briefing ordered by this court following oral argu- ' ment, the State conceded that Wertz had been ’chargеd with, tried for, and convicted of two counts of capital murder but contended that the trial court had merged the two counts into , one prior to the sentencing phase. The trial court’s judgment and commitment order clearly reflects that Wertz was sentenced on two counts of capital murder. The State's contention is without merit. Further, there is . no merit to the State's contentions that Wertz could have been charged with only one count or that the charges were filed as alternate means of proving the same offense.
. Wertz argued on direct appeal that the evidence did not support the jury’s finding that the first aggravating factor was present. We rejected this argument. Wertz,
. Wertz’s trial counsel indicated to the trial court that Wertz had instructed him not to investigate possible mitigating circumstances. We held on review of-the denial of Wertz’s Rule 37 petition that the failure to present mitigation evidence was not ineffective assistance of counsel, Wertz,
. According to his brief, Wertz has not yet sought habeas relief in federal court pending our decision on this motion.
Dissenting Opinion
dissenting,
I dissent. The parties’ arguments and the majority opinion focus on whether error occurred during the penalty phase 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.
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 violation occurred. From the record and the briefs now before us, I am unable to answer that question with certainty, and I would request that the parties address and develop the issue.
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:
(1) A decision by this court “on all fours legally with the issue presented”;
(2) A dismissal of a habeas petition by a federal district court to exhaust state claims; and
(3) A death-penalty case.
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,
The three factors changed again in Nooner v. State,
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.
. The circuit court’s judgment and commitment order lists "TOTAL NUMBER OF COUNTS” as "2”; on the other hand, only one "offense” — capital murder — is reflected below that line.
. The majority's misuses Anderson v. State, which has no similarities to this case. In Anderson, the jury marked the sentencing form that said "No evidence of a mitigating circumstance was presented.”