                                       Cite as 2016 Ark. 249

                  SUPREME COURT OF ARKANSAS
                                          No.   CR-07-1155

                                                     Opinion Delivered: June   9, 2016
STEVEN VICTOR WERTZ
                                   APPELLANT

V.                                                   MOTION TO RECALL DIRECT-
                                                     APPEAL MANDATE
STATE OF ARKANSAS
                                      APPELLEE
                                                     MOTION GRANTED; DEATH
                                                     SENTENCE REVERSED AND
                                                     REMANDED FOR
                                                     RESENTENCING.


                               ROBIN F. WYNNE, Associate Justice


        In 2007, Steven Victor Wertz was convicted of two counts of capital murder 1 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 postconviction relief pursuant to Arkansas Rule of Criminal Procedure

 37.5. Wertz v. State, 2014 Ark. 240, 434 S.W.3d 895. He has now filed a motion and

 supporting brief to recall the mandate entered following his direct appeal, in which he argues

 that this court’s failure to sua sponte raise the issue of the submission of a single set of penalty-

 phase verdict forms following his conviction on two counts of capital murder2 constitutes a


        1
          Wertz was charged pursuant to Arkansas Statutes Annotated section 41-1501(c)
 (Repl. 1977), which states that “a person commits capital murder if with the premeditated
 and deliberated purpose of causing the death of any person, he causes the death of two or
 more persons in the course of the same criminal episode.”
        2
        At oral argument before this court, the State argued for the first time that Wertz
 was convicted of one count of capital murder under section 41-1501(c). In supplemental
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defect or breakdown in the appellate process sufficient to justify recall of the mandate issued

following the disposition of his direct appeal. We grant the motion, reverse his sentence of

death, and remand for resentencing.

       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


briefing ordered by this court following oral argument, the State conceded that Wertz had
been charged 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.

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        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 capital murder. He was tried by a jury,
        was convicted, and as already stated, was sentenced to death.

374 Ark. at 257B58, 287 S.W.3d at 530. During the guilt phase, the jury heard testimony

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 count 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.

       Arkansas Code Annotated section 5-4-603 requires a jury deliberating a possible

sentence of death 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

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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.3 On Form 2, the jury found that there was no evidence of any

mitigating circumstance.4 On Form 3, the jury found (1) that one or more aggravating

circumstances did exist, beyond a reasonable doubt, at the time of the commission of the

capital murder; (2) the aggravating circumstances outweighed beyond a reasonable doubt

any mitigating circumstances; and (3) the aggravating circumstances justify beyond a

reasonable doubt a sentence of death. Form 4, the verdict form, gave the jury the option

to impose a single sentence of either (A) life imprisonment without parole or (B) death.

The jury voted unanimously to sentence Wertz to death.

       This court 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




       3
        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, 374 Ark.
256, 287 S.W.3d 528.
       4
        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, 2014 Ark. 240, 434 S.W.3d 895.

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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 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 to impose death. For support, he cites Ring v. Arizona, 536 U.S. 584 (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




       5
       According to his brief, Wertz has not yet sought habeas relief in federal court
pending our decision on this motion.

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unlike Ring, all findings during sentencing were made unanimously by the jury. Wertz=s

claim of a Sixth Amendment violation is without merit.

       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, 428 U.S. 280 (1976) (plurality opinion), the court

held that the Eighth and Fourteenth Amendments required an individualized sentencing

procedure in capital cases. See Jurek v. Texas, 428 U.S. 262 (1976) (noting that the court

held in Woodson that an individualized sentencing determination is required under the

Eighth and Fourteenth Amendments). The Court stated in Woodson that “the fundamental

respect for humanity underlying the Eighth Amendment . . . requires consideration of the

character and record of the individual offender and the circumstances of the particular offense as

a constitutionally indispensable part of the process of inflicting the penalty of death.” 428

U.S. at 304 (internal citation omitted) (emphasis added).




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       Here, 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 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, 20B21 (1994); Caldwell v. Mississippi, 472 U.S. 320, 323 (1985).

       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 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 “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 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 ProcedureBCriminal.

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)).
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       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 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 ProcedureBCriminal 10(b)(ii) (2008) to review cases

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, 357 Ark. 180, 163 S.W.3d 333 (2004), which was

decided prior to our consideration of Wertz’s direct appeal, we held that the erroneous

completion of the sentencing forms in a capital murder case involved a matter essential to

the determination of the death penalty. Here, although the jury completed the forms it was

given, the erroneous submission of a single set of forms deprived the jury of the opportunity

to determine which aggravators applied to which of the murders. In essence, the jury was

deprived of the ability to correctly complete the forms, which, logically applying our

holding in Anderson, involves a matter essential to the determination of the death penalty.

Pursuant to Rule 10(b)(ii), we were required to raise such an issue as part of our review of

the case on direct appeal. The failure to do so constitutes a defect in the appellate process

as we have defined that term. The presence of a defect in the appellate process and the fact

that Wertz received a sentence of death weigh heavily in favor of this court granting the

motion to recall the mandate and ordering resentencing.




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       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 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.1 As the majority acknowledges, Wertz was

charged with capital murder pursuant to Arkansas Statutes Annotated section 41-1501(1)(c)

(Repl. 1977), which provided that a person commits capital murder if:

(c) 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.

My review of our cases addressing capital-murder convictions under section 41-1501(1)(c)

reveals that a person charged under that statute with causing two or more deaths was

historically charged with, tried for, and convicted of only one count. See, e.g., See v. State,

CR 88-77 (Ark. May 10, 1989) (unpublished per curiam); Watson v. State, CR 85-221 (Ark.

Sept. 19, 1988) (unpublished per curiam) (“There was only one charge of capital murder,



       The circuit court’s judgment and commitment order lists “TOTAL NUMBER OF
       1

COUNTS” as “2”; on the other hand, only one “offense”—capital murder—is reflected
below that line.


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and there was only one conviction.”). Accordingly, I question whether Wertz was properly

charged and tried under the statute.

       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.

       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:

              (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.

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

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the mandate in his Rule 37 proceedings because his counsel during those proceedings had

been intoxicated. Notably, before addressing petitioner’s claim, we reformulated the first

factor from Robbins, changing it from “a case on all fours legally” to “a breakdown in the

appellate process.” Id. at 88, 238 S.W.3d at 55.

          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.6 Second, as even Wertz admits, his



          6
        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.” 357 Ark. 180, 219, 163 S.W.3d 333, 357 (2004). However,
during sentencing, the defendant had offered evidence regarding his abusive family and
troubled childhood. We concluded that the jury failed to consider mitigating evidence and
reversed and remanded for resentencing. Here, though, the issue involves aggravating

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federal habeas petition has not been dismissed for failure to exhaust state remedies. Because

these two factors are missing, and because this case otherwise presents no extraordinary

circumstances, I would deny the motion to recall the mandate.

       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.




circumstances. And there is no evidence that the jury failed to consider any mitigating
factors, which was the crux of the Anderson case.

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