                                   Cite as 2014 Ark. 240

                SUPREME COURT OF ARKANSAS
                                      No.   CR-12-655

STEVEN VICTOR WERTZ                               Opinion Delivered   May 22, 2014
                   APPELLANT
                                                  APPEAL FROM THE SHARP
V.                                                COUNTY CIRCUIT COURT
                                                  [NO. CR-2006-75]

STATE OF ARKANSAS                                 HONORABLE HAROLD S. ERWIN,
                                 APPELLEE         JUDGE

                                                  AFFIRMED.


                            KAREN R. BAKER, Associate Justice


       On July 19, 2007, a Sharp County jury convicted appellant, Steven Victor Wertz, of

two counts of capital murder and sentenced him to death. We affirmed his conviction and

sentence in Wertz v. State, 374 Ark. 256, 287 S.W.3d 528 (2008). The relevant facts as we

recounted in Wertz’s 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, 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. It appears from the
       record that, despite having suspects, police neither arrested nor charged anyone in
       connection with the murders until much later.
                                    Cite as 2014 Ark. 240

              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, 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.

Id. at 258–59, 287 S.W.3d at 530-33.

       On January 16, 2009, Wertz filed his Rule 37.5 petition in the Sharp County Circuit

Court alleging that his retained trial counsel’s, Greg Bryant’s, performance was

constitutionally deficient and asserting twenty-three allegations of ineffective assistance of

counsel. On April 9-10, 2012, the circuit court conducted a hearing. On May 17, 2012,

the circuit court denied Wertz’s petition. Wertz now brings this appeal and presents two

issues for review: (1) the circuit court erred in denying Wertz’s Rule 37 petition because

Wertz received ineffective assistance of counsel in the guilt phase of his trial; and (2) the

circuit court erred in denying Wertz’s Rule 37 petition because Wertz received ineffective

assistance of counsel in the sentencing phase of his trial.

       “On appeal from a circuit court’s ruling on a petitioner’s request for Rule 37 relief, this

court will not reverse the circuit court’s decision granting or denying post-conviction relief

unless it is clearly erroneous. E.g., Prater v. State, 2012 Ark. 164, at 8, 402 S.W.3d 68, 74. A

finding is clearly erroneous when, although there is evidence to support it, the appellate court

after reviewing the entire evidence is left with the definite and firm conviction that a mistake

has been committed. Id., 402 S.W.3d at 74.” Mason v. State, 2013 Ark. 492, at 1–2, ___

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S.W.3d ___, ___.

       Our standard of review requires that we assess the effectiveness of counsel under the

two-prong standard set forth by the Supreme Court of the United States in Strickland v.

Washington, 466 U.S. 668 (1984). Claims of ineffective assistance of counsel are reviewed

under the following standard:

       A convicted defendant’s claim that counsel’s assistance was so defective as to require
       reversal of a conviction has two components. First, the defendant must show that
       counsel’s performance was deficient. This requires showing that counsel made errors
       so serious that counsel was not functioning as the “counsel” guaranteed the defendant
       by the Sixth Amendment. Second, the defendant must show that the deficient
       performance prejudiced the defense. This requires showing that counsel’s errors were
       so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
       Unless a defendant makes both showings, it cannot be said that the conviction resulted
       from a breakdown in the adversary process that renders the result unreliable.


Burton v. State, 367 Ark. 109, 111, 238 S.W.3d 111, 113 (2006) (quoting Strickland, 466 U.S.

at 687).

       The reviewing court must indulge in a strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance. Id. The petitioner claiming

ineffective assistance of counsel has the burden of overcoming that presumption by identifying

the acts and omissions of counsel which, when viewed from counsel’s perspective at the time

of trial, could not have been the result of reasonable professional judgment. See id. Therefore,

Wertz must first show that counsel’s performance fell below an objective standard of

reasonableness and then that counsel’s errors actually had an adverse effect on the defense. Id.

Wertz must satisfy both prongs of the test, and it is not necessary to determine whether counsel

was deficient if Wertz fails to demonstrate prejudice as to an alleged error. Kelley v. State,

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2011 Ark. 54, ___ S.W.3d ___.

       Further, with respect to an ineffective-assistance-of-counsel claim regarding the decision

of trial counsel to call a witness, such matters are generally trial strategy and outside the

purview of Rule 37.1. Banks v. State, 2013 Ark. 147. Where a petitioner alleges ineffective

assistance of counsel concerning the failure to call witnesses, it is incumbent on the petitioner

to name the witness, provide a summary of the testimony, and establish that the testimony

would have been admissible into evidence. Moten v. State, 2013 Ark. 503 (per curiam). In

order to demonstrate prejudice, the petitioner is required to establish that there was a

reasonable probability that, had counsel performed further investigation and presented the

witness, the outcome of the trial would have been different. Hickey v. State, 2013 Ark. 237,

___ S.W.3d ___.       Trial counsel must use his or her best judgment to determine which

witnesses will be beneficial to the client. Id. Nonetheless, such strategic decisions must still

be supported by reasonable professional judgment. Id. Finally, “[w]hen assessing an attorney’s

decision not to call a particular witness, it must be taken into account that the decision is

largely a matter of professional judgment which experienced advocates could endlessly debate,

and the fact that there was a witness or witnesses that could have offered testimony beneficial

to the defense is not in itself proof of counsel’s ineffectiveness. Huls v. State, [301 Ark. 572, 785

S.W.2d 467 (1990)]; Dumond v. State, 294 Ark. 379, 743 S.W.2d 779 (1988).” Johnson v. State,

325 Ark. 44, 49, 924 S.W.2d 233, 236 (1996).

                                         Points on Appeal

                          I. Ineffective Assistance of Counsel: Guilt Phase


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       For his first point on appeal, Wertz makes several arguments regarding ineffective

assistance of counsel at the guilt phase. Specifically, Wertz asserts that Bryant should not have

worked alone, but should have retained a second attorney to assistance him in handling

Wertz’s case as prescribed by the American Bar Association (hereinafter ABA) guidelines.

Further, Wertz asserts that Bryant took $35,000 from Wertz that was intended for the express

use of hiring a second attorney, Jeff Rosenzweig. Wertz contends that because Bryant failed

to retain co-counsel and failed to retain necessary services, Bryant was constitutionally

deficient on seven subpoints:

       1. Bryant failed to review the physical evidence held by the State.

       2. Bryant failed to retain a forensic investigator to review the physical evidence.

       3. Bryant failed to retain and have a forensic pathologist to review the autopsy results.

       4. Bryant failed to properly prepare and present evidence on the “time and distance”
       argument.

       5. Bryant failed to investigate Wertz’s contention that the footprint on the door of the
       home was too small to be Wertz’s shoe.

       6. Bryant failed to interview the following witnesses who had knowledge relevant to
       Wertz’s defense: Mark Sealey (crime scene technician), Jeff Qualls (Sharp County
       coroner at the time of the murders), Jamie Snyder’s ex wife, and countless individuals
       Wertz knew over his lifetime who should have been called.

       7. Bryant failed to spend sufficient time with Wertz to prepare him to testify at trial
       and enable him to understand the nature of the trial process.

                                      Pretrial Investigation

       Wertz’s first three subpoints assert that Bryant’s pretrial investigation was deficient.

First, Bryant did not properly investigate the physical evidence. Second, Bryant did not hire


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a forensic investigator to examine the physical evidence including the shotgun, the shoe print,

the victim’s front door, shot gun shells, and the shot gun pattern on the front door. Third,

Bryant did not retain a forensic pathologist to review the autopsy reports. Wertz asserts that

because Bryant did not perform an adequate investigation including retaining forensic experts,

Wertz was prejudiced. The State responds that Wertz has failed to demonstrate that Bryant’s

representation was deficient and asserts that Wertz’s claims are conclusory.

       In reviewing an assertion of ineffective assistance of counsel based on failure to

investigate, a petitioner must describe how a more searching pretrial investigation would have

changed the results of his trial. Fernandez v. State, 2011 Ark. 418, 384 S.W.3d 520. There

is a strong presumption that trial counsel’s conduct falls within the wide range of reasonable

professional assistance, and the burden is entirely on the claimant to provide facts that

affirmatively support his claims of prejudice. Shipman v. State, 2010 Ark. 499 (per curiam).

Neither conclusory statements nor allegations without factual substantiation are sufficient to

overcome the presumption and cannot provide a basis of postconviction relief. Id. General

assertions that counsel did not aggressively prepare for trial are not sufficient to establish an

ineffective-assistance-of-counsel claim. Id.

       We now turn to the circuit court’s order denying Wertz’s claim regarding Bryant’s pre-

trial investigation. The circuit court’s order stated:

               The court finds this allegation [of lack of investigation] is a conclusory statement
       by petitioner and as such, cannot be the basis of postconviction relief. Sparkman v.
       State, 373 Ark. 45, 281 S. W.3d 277 ( 2008). There was testimony petitioner spent
       time with the lead investigator going over evidence in Sharp County as well as having
       evidence reviewed by the State Crime Lab.


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       ....

       Petitioner is making conclusory statements without offering any proof and as such,
       cannot be the basis of post-conviction relief. Sparkman, supra. Petitioner’s allegations
       here are highly questionable, even assuming such an analysis was possible. Petitioner
       claims an expert should have been retained to test a shotgun ( which was found in
       1987), which no longer existed at the time of petitioner’s arrest.
       ....
              Petitioner has asserted that defense counsel failed to procure an independent
       medical examiner to rebut the testimony of Dr. Charles Kokes concerning lividity and
       time of death of Kathy Watts. This allegation is conclusory and not supported by any
       proof demonstrating that an independent medical examiner would have rebutted the
       testimony of Dr. Kokes or how the proceedings would have been different had such
       a witness been called. As such, this allegation fails and cannot be the basis for
       post-conviction relief. Sparkman, supra.

       Here, Wertz contends the circuit court erred and claims that had Bryant retained these

forensic experts, Bryant would have discovered exculpatory evidence.

       However, the record demonstrates that Wertz made only general assertions that do not

provide sufficient factual substantiation for his claims of prejudice. Wertz has made conclusory

allegations and has failed to demonstrate that a more searching investigation would have

changed the results of his trial. In reviewing the circuit court’s order, we find no error as to

this claim.

                                 “Time and Distance” Defense

       Wertz’s fourth subpoint of error during the guilt phase alleges that Bryant rendered

ineffective assistance of counsel when Bryant failed to present evidence of an alternative “time

and distance” argument that would demonstrate the physical impossibility that he committed

the crimes. Wertz contends that Bryant performed a “shoddy investigation” and failed to

adequately investigate the route, weather conditions, and vehicle driven from Guthrie,


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Oklahoma to Ash Flat, Arkansas. Further, Wertz contends that if Bryant had been properly

prepared for trial, Bryant would have been able to demonstrate that the trip could not have

taken place during the time frame the State asserted and that the State’s timeline and Wertz’s

co-defendant’s, Snyder’s, timeline were inconsistent.

       The State responds that the circuit court should be affirmed because Bryant reasonably

presented evidence of Wertz’s “time and distance” defense as well as through the cross-

examination of multiple witnesses and his own witnesses.

       In denying Wertz’s claim, the circuit court held that

       [t]he weather conditions on or about the time of the murders was in evidence at trial.
       Bryant, while not having a representative from the actual car manufacturer, put on
       testimony that the one-way trip from Oklahoma to Ash Flat trip took two tanks of
       gasoline. Consequently, the court further finds Bryant acted reasonably in the
       interviews and made reasonable efforts in attempting to locate and interview witnesses
       whose testimony was potentially exculpatory.

       Wertz asserts that the circuit court erred. To prevail, Wertz must describe how a more

searching pretrial investigation would have changed the results of his trial. Fernandez v. State,

2011 Ark. 418, 384 S.W.3d 520. Here, the record demonstrates that Bryant cross-examined

the following witnesses about the time of death of the victims which went to discredit the

State’s timeline: Arkansas State Police Sergeant Steve Huddleston, former Sharp County Chief

Deputy Dennis Burton, and Joe Stidman, a reserve officer with the Sharp County Sheriff’s

Office. Huddleston, Burton, and Stidman all testified regarding their involvement in the

investigation, the Polaroid pictures of the crime scene, and the arrival time of Mark Sealey,

the medical examiner technician, who came to retrieve the bodies. Additionally, Dr. Charles

Kokes testified about the estimated time of death and the Polaroid pictures that were taken

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at the scene. Bryant cross-examined each of these witnesses regarding the timeline that Wertz

argues was not adequately addressed at trial. Additionally, Bryant presented his own witness,

Tyson Spradlin, his associate and assistant, regarding the time it took to travel from Ash Flat,

Arkansas, to Guthrie, Oklahoma. Spradlin testified about the make and model of his car, the

gas used, the fastest route, and the time it took him to travel. Accordingly, Bryant put

evidence before the jury refuting the State’s timeline of the case. Based on our standard of

review, we cannot say the circuit court clearly erred.

                                         Boot/Footprint

       For his fifth subpoint of error alleging ineffective assistance of counsel during the guilt

phase of the trial, Wertz asserts that Bryant was ineffective for failing to investigate that the

footprint on the Wattses’s door used in the State’s prosecution could not have been his

footprint because it was too small and the pattern did not match the soles of his boots. The

circuit court held that

       [t]he allegation of deficient conduct by not calling an expert with regard to a shoe
       print not matching the size of petitioner fails because the circumstances regarding the
       evidence was before the jury.

       At trial, during his cross-examination of Huffmaster, Wertz established that he wore

a size 13 shoe and the footprint found was a size 9. Here, the record from the Rule 37

hearing demonstrates that Wertz has failed to present evidence to support his claim and that

he makes conclusory allegations. In reviewing the circuit court’s ruling on this claim, we find

no error.

                                  Failure to Interview Witnesses


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       Wertz’s sixth subpoint of error in the guilt phase is that he received ineffective

assistance of counsel when Bryant failed to present the following witnesses: Mark Sealey, Jeff

Qualls, Jamie Snyder’s ex-wife (the accomplice’s ex-wife), and countless individuals whom

Wertz knew. The circuit court denied Wertz’s argument on this point and held,

              According to the testimony at the evidentiary hearing, Bryant was not able to
       locate Mark Sealey, however, the substance of his testimony regarding his opinion as
       to time of death was put before the jury. Additional testimony concerning the
       coroner’s report was also presented at the evidentiary hearing, however, the report
       corroborated Dr. Kokes’ estimated time of death.
       ...
              Petitioner alleges that trial counsel failed to adequately investigate the physical
       evidence held by the State of Arkansas, theorizing that an adequate investigation would
       have disclosed that items of physical evidence were exculpatory to the guilt of
       petitioner and that physical evidence could have been used by defense counsel to
       attack the credibility of the State’s chief investigator, the alleged accomplice James
       Snyder, Jr. and petitioner’s ex-wife, Belinda Wertz, whose testimony was adverse to
       petitioner. The court finds this allegation is a conclusory statement by petitioner and
       as such, cannot be the basis of postconviction relief. Sparkman v. State, 373 Ark. 45,
       281 S. W.3d 277 (2008). There was testimony petitioner spent time with the lead
       investigator going over evidence in Sharp County as well as having evidence reviewed
       by the State Crime Lab.

       In reviewing this claim, “[i]t is incumbent on . . . [Wertz] . . . to name the witness,

provide a summary of the testimony, and establish that the testimony would have been

admissible into evidence.” Shipman, 2010 Ark. 499, at___, ___ S.W.3d ___, ___. In order

to demonstrate prejudice, Wertz was required to establish that there was a reasonable

probability that, had counsel performed further investigation and presented the witness, the

outcome of the trial would have been different. Hickey, 2013 Ark. 237, ___ S.W.3d ___.

At the Rule 37 hearing, Wertz did not call any of these witnesses or submit affidavits with

their testimony. Thus, Wertz asserts no more than conclusory statements in this regard, and


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we affirm the circuit court on this claim.

                                     Failure to Prepare Wertz

         For his final allegation of ineffective assistance of counsel at the guilt phase, Wertz

claims that Bryant failed to spend sufficient time with Wertz to prepare him to testify and

enable him to understand the trial process. An attorney’s advice to his or her client is not

grounds for an ineffective-assistance-of-counsel claim. Whether a defendant testifies is not

a basis for postconviction relief. Dansby v. State, 347 Ark. 674, 679, 66 S.W.3d 585, 588

(2002). Further, the accused has the right to choose whether to testify on his own behalf.

Chenowith v. State, 341 Ark. 722, 19 S.W.3d 612 (2000) (per curiam). Counsel may only

advise the accused in making the decision, and the decision to testify is purely one of strategy.

Id. Therefore, we affirm the denial of Wertz’s claim on this point.

         Based on the discussion above, we do not find that the circuit court erred. Wertz did

not provide support for his conclusory claims that counsel was ineffective. Likewise, there has

been no showing that Bryant committed any specific error that prejudiced the defense because

Wertz did not specify with facts how the defense was prejudiced. As discussed infra, based on

Strickland, Wertz must show that, but for counsel’s errors, the fact-finder would have had a

reasonable doubt respecting guilt and that the decision reached would have been different

absent the errors.     In reviewing the record before us and Wertz’s argument, we are

unpersuaded that Wertz has met his burden, and we affirm the circuit court’s denial of this

claim.

                       II. Ineffective Assistance of Counsel: Sentencing Phase


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       For his second point on appeal, Wertz contends that the circuit court erred when it

denied Wertz’s claim that he received ineffective assistance of counsel during the sentencing

phase of his trial because Bryant did not adequately investigate and present mitigation

evidence. Citing Strickland v. Washington, 466 U.S. 668 (1984); Sanford v. State, 342 Ark. 22,

25 S.W.3d 414 (2000); and Wiggins v. Smith, 539 U.S. 510 (2003), Wertz asserts that Bryant

had an absolute duty to fully investigate all possible mitigating circumstances despite Wertz’s

instructions. Wertz contends that this failure to investigate fulfills both prongs of Strickland

– deficient performance and prejudice – and urges this court to reverse the circuit court.

       The State responds that Wertz mischaracterizes Bryant’s performance and testimony

at the Rule 37 hearing, as Bryant did investigate and present mitigation evidence. Further,

the State responds that Wertz’s argument is without merit because the record demonstrates

that Wertz specifically instructed Bryant to not investigate and present mitigation evidence.

Finally, the State asserts that we should affirm the circuit court because Wertz has failed to

demonstrate prejudice.

       In reviewing an assertion of ineffective assistance of counsel for the failure to call a

certain witness, the objective is to determine whether the failure resulted in actual prejudice

that denied the petitioner a fair trial. Moten v. State, 2013 Ark. 503 (per curiam). The decision

to call or not to call a particular witness is largely a matter of professional judgment. The fact

that there was a witness or witnesses who could have offered beneficial testimony is not, in

itself, proof of counsel’s ineffectiveness. Noel v. State, 342 Ark. 35, 26 S.W.3d 123 (2000).

Further, in reviewing an assertion of ineffective assistance of counsel based on counsel’s failure


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to investigate and present mitigation evidence, the failure to conduct any investigation will

not pass the constitutional standard we require; however, reasonable strategic choices do not

rise to the level of satisfying Strickland. See Sanford v. State, 342 Ark. 22, 25 S.W.3d 414

(2000). In Sanford we held that, the attorney’s “failure to investigate caused the jury not to

have before it all the available significant mitigating evidence” and further held that such

failure raised “a reasonable probability that the result of the sentencing proceeding would have

been different if competent counsel had presented and explained the significance of all the

available evidence.” Id. 342 at 34, 25 S.W.3d at 422 (citing Williams v. Taylor, 529 U.S. 362

(2000)).

       Finally, in order to satisfy Strickland, Wertz must meet both prongs, deficient

performance and prejudice. This requires showing that counsel made errors so serious that

counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth

Amendment. See Stiggers v. State, 2014 Ark. 184, ___ S.W.3d ___ (internal citations omitted).

Prejudice must be established by demonstrating that there is reasonable probability that, had

counsel performed further investigation and presented the witness, the outcome of the trial

would have been different. With these standards in mind, we turn to the circuit court’s order

and its denial of Wertz’s claim on his second point:

              Petitioner alleges Bryant failed to interview witnesses who could have provided
       mitigating evidence for the petitioner at the punishment stage of the trial. As stated by
       the court in the court’s Findings of Facts and Conclusions of Law 3 above, the court
       finds that Bryant may have been deficient in his representation of his client in the
       mitigation stage of his trial by not calling at least one other witness, not a family
       member, who could have testified as to a good trait of petitioner. The court finds that
       this omission did not prejudice the petitioner to the extent that the decision reached
       by the jury would have been different.

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       To review the circuit court’s order and correctly determine this issue, we must look

at all the evidence adduced at trial and at the Rule 37 hearing. Howard v. State, 367 Ark. 18,

238 S.W.3d 24.

       At trial, during the sentencing phase, Bryant presented two mitigation witnesses: Steve

Huddleston and Wertz’s wife, Judy Wertz. First, Huddleston testified that Wertz may not

have known that the victims’ one-year old baby was in the house at the time of the murders,

in an attempt to convince jurors that one of the aggravators had not been met. Second,

Bryant called Judy and she testified regarding their courtship; that Wertz married her as she

had been a widow; and Wertz was religious, was a hard worker, treated people personally and

professionally with respect, provided a stable and loving home, was a grandfather to her three

grandchildren who lived next door to them in Florida, and was interested in music.

       At the Rule 37 hearing, Bryant testified that Wertz did not give him names of

individuals to call as mitigation witnesses and was not forthcoming with personal information

or his life history. Bryant further testified that through his handling of the case, he discovered

friends and co-workers of Wertz’s, but assessed that none of them would have provided

favorable testimony for Wertz. Additionally, Bryant testified that he contacted Wertz’s

children. Wertz’s son was not willing to testify on Wertz’s behalf and Wertz’s daughter

attended the trial, but once she arrived she changed her mind and was not interested in

testifying on his behalf. Bryant also stated that Wertz’s brother would not have been favorable

on Wertz’s behalf. Further, Judy Wertz’s daughter was not willing to testify on Wertz’s

behalf. Finally, Bryant testified that Wertz instructed Bryant to not investigate or present


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mitigation evidence and also that Wertz did not want to take the stand in either the guilt or

the sentencing phase.1 Bryant also testified that Wertz had told Bryant he would rather be

executed than spend the remainder of his life in jail.

       Also at the Rule 37 hearing, Wertz testified that he did not instruct Bryant to not put

on or investigate mitigation evidence and also testified that Bryant never explained the

mitigation process to him. Wertz further testified that Bryant did not keep him informed.

Judy testified that she understood that Rosenzweig was going to handle the mitigation but



       1
       We note that Wertz’s waiver is contained in the trial record:

       DEFENSE COUNSEL:             Judge, there are two things I want to put on the record.
                                    The first one is that early on into this - my representation
                                    of Mr. Wertz he instructed me not to conduct a
                                    mitigation investigation. And I don’t think it’s necessary
                                    that I go on record as to the reasons why.

       THE COURT:                   It’s up to him.

       MR. BRYANT:                  He instructed me not to go into any mitigating events
                                    anyway but there - as opposed to an investigation which
                                    --that encompasses the whole different matter and the
                                    other thing, Your Honor is that Mr. Wertz, both at the
                                    guilt phase and now at the penalty phase has decided not
                                    to take the witness stand.

       THE COURT:                   Is that correct?

       DEFENDANT:                   Sir, what?

       THE COURT:                   Is that correct?

       DEFENDANT:                   Yes.



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was not aware that there were two different phases at trial.

       Additionally, at the Rule 37 hearing, in addition to the two mitigation witnesses at

trial, Wertz presented testimony from three additional witnesses: Ed Briggs, Stacy

Worthington Chism, and Teri Chambers. First, Briggs testified that he had known Wertz for

over thirty years, that the two had met in Vietnam, and that Briggs relied on Wertz in the

field in Vietnam. Briggs also testified to a story about Wertz protecting a child and making

sure he was safe after an ambush. Several years later, the two were both employed as police

officers together, and Briggs testified about Wertz having helped him and fellow officers on

the scene of a traffic stop when he called for assistance.

       Second, Chism testified that she was a mitigation specialist with the Arkansas Public

Defender’s Commission and, in preparation for Wertz’s Rule 37 hearing, investigated Wertz’s

history. She testified regarding the investigation that she would have performed at trial

including but not limited to, family history, Wertz’s first wife, Wertz’s children, military

experience, work history, mental retardation, psychological evaluation, school history, former

teachers, and photos of his family history. Chism also testified regarding photos she had

discovered during her investigation including, but not limited to, Wertz as a child, Wertz with

his children, Wertz with his first wife, Wertz in Vietnam, Wertz with his current wife, Judy,

and newspaper clippings from when Wertz was a swimmer in high school. The photos were

introduced into evidence.

       Third, Chambers, an attorney with the Arkansas Public Defender Commission, Capital

Conflicts Office, testified as to the ABA Guidelines regarding the investigation of mitigation


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evidence. She testified about the importance of investigating a defendant’s history and

presenting that information to the jury.

       Turning to Wertz’s argument on appeal, Wertz asserts that his case is analogous to

Sanford, alleges that Bryant abdicated his duty to investigate, and argues that the outcome

would have been different if the jury had been fully informed of the various mitigating factors.

However, this argument is flawed for two reasons. First, unlike the record in Sanford, the

record in this case demonstrates that Bryant presented some mitigation evidence. In Sanford,

at the Rule 37 hearing, Sanford’s counsel

       largely conceded that he did little in putting on proof of mitigation during the penalty
       phase, and that the reasons may have been because he was ‘quite disappointed’ in the
       jury’s guilty verdicts, and ‘he was tired.’ In fact, while he was well aware that, during
       the penalty phase, the prosecutor painted Sanford as a remorseless, heartless,
       cold-blooded person, [Sanford’s counsel] guessed “he did not do anything” to counter
       the State’s presentation in the penalty phase. Moreover, when asked by the trial court
       if he intended to ask for AMCI 1009—the capital murder, mitigation instruction based
       on mental retardation—Howard responded, ‘Yes, Your Honor, I had not even . . .
       thought about it, but I am quite sure I am going to offer that.’

       ....

       From the colloquy between the trial court and counsel, it became obvious that,
       although he could have offered additional evidence at the penalty stage, [Sanford’s
       counsel] had made no plans to offer any more evidence except the testimony of
       Sanford’s parents.
       ....

       [Sanford’s counsel] admitted he made no effort to obtain Sanford’s school records, jail
       records, medical records, or family history. While he had a social worker available to
       him, Howard never considered asking the worker to assist him in developing
       mitigation.

Id., at 32, 25 S.W.3d at 421.

       Here, Bryant did present mitigation evidence. Accordingly, Wertz’s case is

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distinguishable from the Sanford case.

       Second, we do not find Wertz’s case analogous to Sanford because at Wertz’s Rule 37

hearing, Wertz failed to present potential mitigation evidence that would have likely caused

the jury to reach a different result. At the Rule 37 in Sanford, extensive mitigation evidence

was presented that had been omitted from Sanford’s trial:

       Sanford’s school records showed Sanford had been in special education, and had been
       considered mildly mentally retarded during much of his time in school. Sanford was
       shown to have a good record with only one disciplinary incident. His medical history
       reflects he almost suffocated to death as a child when a load of cotton seed fell on him;
       Sanford’s mother opined Sanford acted a “bit slower” after the cotton-seed incident.
       Later he suffered a blow to the head with a two-by-four wielded by his sister. Proof
       also available, but not investigated by [Sanford’s counsel], showed siblings and other
       family members to be either slow or retarded.

Id., 342 at 33, 25 S.W.3d at 421.

       In contrast, at Wertz’s Rule 37 hearing, little potential mitigating testimony was

presented. Wertz presented three mitigation witnesses that did not testify at the first trial,

Briggs, Chism and Chambers, and the record fails to demonstrate that there was a reasonable

probability that the jury would have reached a different result based on this Rule 37

testimony. Briggs stated that he would have testified regarding his relationship with Wertz,

Wertz’s military service, and redeeming personal qualities through personal stories. However,

the record also demonstrates that Wertz had lied about military service and recognition, even

forging military records, and if Briggs had testified, then the State would have been able to

cross-examine him about Wertz’s dishonesty.

       Further, although Chism testified about how she would conduct her mitigation

investigation and the evidence she had discovered about Wertz, including the introduced

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photos, this testimony did not amount to specific mitigation evidence demonstrating that

Wertz was prejudiced.2 Chism testified regarding the family history, the cousins, the work

history, and the “50 years of life that were not covered by the testimony of Judy Wertz” but

did not present any specific evidence that would likely change the outcome. Finally,

Chambers did not provide any testimony specific to Wertz; rather, she only discussed the

ABA guidelines and the investigation that should have been conducted.

       Here, this is not a situation where counsel totally failed to investigate and put forth

mitigation evidence as in Sanford. Bryant produced two mitigation witnesses who testified

about Wertz’s general good character, his work ethic, his love for and involvement with his

family, and the fact that Wertz was not aware that the victims’s one-year old son was at the

scene when the murders took place. Also, despite whether counsel was deficient on

investigating and presenting sufficient mitigation, Wertz’s case is distinguishable from Sanford’s

case because, Wertz has failed to present specific evidence to demonstrate prejudice arose and

demonstrate a reasonable probability that the information uncovered with further investigation

would have changed the outcome.

        We next turn to Williams v. Taylor, 529 U.S. 362 (2000), which the Sanford decision

relied heavily upon. Wertz’s case is also distinguishable from Williams. In Williams, the

evidence was much more substantial than in the present case:


       2
         At the Rule 37 hearing, the State introduced a psychologist’s report as the witness was
ill and unable to attend the hearing. The report provided that Wertz did not display any
significant psychiatric symptoms, including PTSD. The report also stated that Wertz had no
previous history for any significant psychiatric impairments. Finally, the report stated that
Wertz would likely not make a good witness on his own behalf.

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              Existing documents in Williams dramatically described mistreatment, abuse, and
       neglect during [the appellant’s] early childhood, as well as testimony that he was
       ‘borderline mentally retarded,’ had suffered repeated head injuries, and might have
       mental impairments organic in origin. Other omitted evidence showed that the
       appellant did not advance beyond sixth grade in school, his parents had been
       imprisoned for the criminal neglect of the appellant and his siblings, he had been
       severely and repeatedly beaten by his father, he was in the custody of the social services
       bureau for two years during which he had a stint in an abusive foster home, and he was
       returned to the custody of his parents after they were released from prison. In addition,
       the appellant had received commendations in prison for helping to crack a prison drug
       ring and for returning a guard’s missing wallet, and prison guards were willing to testify
       that he was among the inmates least likely to act in a violent or dangerous way.

Williams v. State, 347 Ark. 371, 379, 64 S.W.3d 709, 716 (citing Williams v. Taylor, 529 U.S.
at 370).

       Also, in support of his claim, Wertz refers us to the United States Supreme Court’s

decision in Wiggins v. Smith, 539 U.S. 510 (2003). However, Wertz’s case is also

distinguishable from Wiggins. In Wiggins, the mitigating evidence counsel failed to discover

was “powerful”:

       Wiggins experienced severe privation and abuse in the first six years of his life while in
       the custody of his alcoholic, absentee mother. He suffered physical torment, sexual
       molestation, and repeated rape during his subsequent years in foster care. The time
       Wiggins spent homeless, along with his diminished mental capacities, further augment
       his mitigation case.

Wiggins, 539 U.S. at 534.

The Supreme Court held that “[g]iven both the nature and the extent of the abuse petitioner

suffered, we find there to be a reasonable probability that a competent attorney, aware of this

history, would have introduced it at sentencing in an admissible form.” Id. at 535.

       Having reviewed Wertz’s ineffective-assistance-of-counsel claim regarding the

investigation of mitigation evidence, we find no merit in Wertz’s argument. Wertz contends,


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with no factual substantiation, the outcome would have been different if Bryant had

investigated and presented mitigation evidence. “When a defendant challenges a death

sentence, the question is whether there is a reasonable probability that, absent the errors, the

sentencer would have concluded that the balance of aggravating and mitigating circumstances

did not warrant death. Hill v. Lockhart, 28 F.3d 832 (8th Cir. 1994) (citing Strickland v.

Washington, supra ).” Williams v. State, 347 Ark. 371, 379, 64 S.W.3d 709, 716. Wertz has

failed to meet this burden, and based on our standard of review, we find no error and affirm.

       Affirmed.

       Special Justice ANDREW FULKERSON and HART, J., concur in part and dissent in part.

       GOODSON, J., not participating.

       ANDREW FULKERSON, Special Justice, concurring in part and dissenting in

part. I concur with the majority’s conclusion that appellant, Steven Victor Wertz, did not

receive ineffective assistance of counsel during the guilt phase of his trial. However, I would

hold that Wertz received ineffective assistance of counsel during sentencing, In appeals of

post-conviction proceedings, we will not reverse unless a circuit court’s decision is clearly

erroneous. State v. Barrett, 371 Ark. 91, 95, 263 S.W.3d 542 546 (2007). The circuit court’s

conclusion that Wertz waived the mitigation investigation and defense is clearly erroneous.

Therefore, I respectfully dissent.

       In Coulter v. State, this court observed:

       The constitutional guarantee of effective assistance of counsel extends to the sentencing
       phase of the defendant’s trial. Counsel’s failure to investigate and present substantial
       mitigating evidence during the sentencing phase may constitute ineffective assistance of
       counsel. Counsel is obligated to conduct an investigation for the purpose of ascertaining

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       mitigating evidence, and the failure to do so is error. Such error, however, does not
       automatically require reversal unless it is shown that, but for counsel’s errors, there is a
       reasonable probability that the sentence would have been different. When reviewing a
       claim of ineffectiveness based upon failing to present adequate mitigating evidence, we
       must view the totality of the evidence—both that adduced at trial and that adduced in the
       postconviction proceeding.

343 Ark. 22, 29, 31 S.W.3d 826, 830 (2000) (internal citations omitted). While the decision not

to investigate or present mitigating evidence can be considered a matter of trial tactics or strategy,

“a ‘total abdication of duty’ to prepare a mitigation case ‘should never be viewed as permissible

trial strategy.’” Sanford v. State, 342 Ark. 22, 31, 25 S.W.3d 414, 420 (2000) (quoting Pickens v.

Lockhart, 714 F.2d 1455 (8th Cir. 1983)). In Sanford, again quoting from Pickens, the court stated:

       The lawyer also has a substantial and important role to perform in raising mitigating
       factors both to the prosecutor initially and to the court at sentencing. This cannot
       effectively be done on the basis of broad general emotional appeals or on the strength of
       statements made to the lawyer by the defendant. Information concerning the
       defendant’s background, education, employment record, mental and emotional stability,
       family relationships, and the like, will be relevant, as will mitigating circumstances
       surrounding the commission of the offense itself. Investigation is essential to fulfillment
       of these functions.

Id. at 33–34, 25 S.W.3d at 422.

       Stacy Worthington Chism, a mitigation specialist for the Arkansas Public Defender

Commission, testified during the Rule 37 hearing and described the mitigation evidence that

she was able to assemble on behalf of Wertz. This included documents and photographs from

childhood, his baby book, school records, swim-team medals and newspaper clippings,

certificates related to his career as a law enforcement officer, and photographs of Wertz with

his children and his grandchildren. None of this evidence was offered during the sentencing

phase of his trial. Chism testified that “[t]he main objective in a sentencing phase is you tell the


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life story of the defendant. What you are doing is trying to save his life by humanizing him.”

        The majority, addressing only the prejudice prong of Strickland, concludes that

“although Chism testified about how she would conduct her mitigation investigation and the

evidence she had discovered about Wertz . . . this testimony did not amount to specific

mitigation evidence demonstrating that Wertz was prejudiced.” This conclusion, however,

entirely misses the point. As this court stated in Sanford, information concerning the defendant’s

background, education, employment record, mental and emotional stability, family

relationships, and the like, will be relevant. The evidence demonstrated prejudice by showing

what an effective attorney would have investigated and presented to humanize Wertz to the

jury.

        In this case, based on the limited mitigating evidence presented, which defense counsel

purportedly offered against Wertz’s wishes, the jury did not find any mitigating circumstances. The

clear import of Chism’s evidence would have been to humanize Wertz to the jury. The

effective use of mitigation evidence is all the more important in a state such as Arkansas in

which it takes only one juror to be touched by one or more mitigating factors and change a

sentence from death to life without the possibility of parole. The very limited mitigation

evidence offered at Wertz’s trial was far from what, as decidedly shown by Chism’s testimony,

could have been discovered and offered. A thorough and proper mitigation investigation such

as that described by Chism could have done much to “humanize” Wertz in the eyes of the

jury. It is important to recognize that, but for defense counsel’s failure to investigate, there is

a reasonable possibility that a mitigating circumstance would have been found and that a single


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juror would have chosen life. It may have been a valid, strategic decision to not call a witness

who trial counsel believed would be unhelpful. The voluminous mitigating evidence collected

by Mitigation Specialist Stacy Worthington Chism could have been offered through virtually

any witness (Mrs. Wertz, for example, who did read a prepared statement during the

sentencing phase), as the Rules of Evidence do not apply to admission of mitigating

circumstances. Ark. Code Ann. § 5-4-602(4)(B)(i) (Repl. 2013). After a finding by the jury

of aggravating circumstances, the failure to have presented any meaningful mitigating

circumstances makes the death penalty all but inevitable.

       The evidence demonstrated that defense counsel’s performance was deficient. The

United States Supreme Court has emphasized that “Strickland does not require counsel to

investigate every conceivable line of mitigating evidence no matter how unlikely the effort

would be to assist the defendant at sentencing,” and does not “require defense counsel to

present mitigating evidence at sentencing in every case.” Wiggins v. Smith, 539 U.S. 510, 533

(2003). Nevertheless, it is well established that strategic choices made after less than complete

investigation are reasonable only to the extent that reasonable professional judgments support

the limitations on investigation, and a decision not to investigate must be directly assessed for

reasonableness in all the circumstances. Id.

       Defense counsel’s failure to conduct an investigation of mitigating circumstances meant

that Wertz’s purported waiver of a mitigation investigation was not made knowingly and

voluntarily. Though not addressed by the majority, the State argues that Wertz made a decision

to forego mitigating evidence. This is the first case in which this court has been asked whether


                                               24
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a capital defendant can waive defense counsel’s investigation of mitigation evidence. Wertz’s

purported waiver is contained in the trial record:

       DEFENSE COUNSEL: Judge, there are two things I want to put on the record. The first
       one is that early on into this—my representation of Mr. Wertz he instructed me not to
       conduct a mitigation investigation. And I don’t think it’s necessary that I go on record
       as to the reasons why.
       THE COURT: It’s up to him.
       DEFENSE COUNSEL: He instructed me not to go into any mitigating events anyway but
       there—as opposed to an investigation which—that encompasses the whole different
       matter and the other thing, Your Honor is that Mr. Wertz, both at the guilt phase and
       now at the penalty phase has decided not to take the witness stand.
       THE COURT: Is that correct?
       DEFENDANT: Sir, what?
       THE COURT: Is that correct?
       DEFENDANT: Yes.

       The colloquy among defense counsel, the court, and Wertz is a discussion of two

distinct subjects: Wertz’s decision not to conduct a mitigation investigation and Wertz’s

decision to not take the witness stand. It is evident from this exchange that the court, in asking

whether defense counsel was correct, was asking whether Wertz had decided not to take the

stand, and Wertz affirmed that this was correct. Wertz’s response was decidedly not a waiver

of a mitigation investigation. Thus, the manner in which this exchange was conducted renders

it impossible to ascertain the wishes of Wertz about how to conduct the sentencing phase of

his trial; the existence of a waiver of mitigation by Wertz is far from clear. This on-the-record

exchange is wholly insufficient for a finding that Wertz waived a mitigation investigation or

defense.

       Defense counsel testified that Wertz directed him to conduct no mitigation defense.

Wertz denied that allegation. The assertion by defense counsel that Wertz did not desire a


                                               25
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mitigation defense is suspect given the conduct of Mrs. Wertz, who met with defense counsel

and another attorney and discussed mitigation issues and a fee of $35,000. A short time

thereafter, Mrs. Wertz forwarded payment in the amount of $35,000. Her other payments

were in the amounts of $10,000, $15,000, $10,000, and $5,000, respectively. The $35,000

payment following the meeting starkly contradicts defense counsel’s assertion. The assertion

that Wertz did not desire a mitigation defense is further clouded by the fact that defense

counsel did, in fact, put on some very limited evidence in mitigation with no objection from

Wertz.

         A capital defendant may use his own judgment to his detriment and thwart his counsel’s

efforts to investigate or present mitigation issues. Singleton v. Lockhart, 962 F.2d 1315, 1322 (8th

Cir. 1992). However, defense counsel and the court must take steps to ensure that this is a

knowing and voluntary waiver of an important right. Id. It is essential that defense counsel and

the court ensure that the decision of the defendant to not investigate or present mitigation

issues is a knowing and voluntary waiver. This showing of a knowing and voluntary waiver

is absent from both the trial record and the Rule 37 hearing. The failure by counsel to clearly

enunciate on the record the fact that Wertz prevented or limited an investigation into potential

mitigation evidence and limited any use of mitigation evidence at the sentencing phase of the

trial violates the due-process rights of Wertz. Similarly, the failure of the trial court to ensure

that the defendant did intend to prevent or limit counsel’s investigation or use of mitigating

evidence is a violation of due process.

         In Schriro v. Landrigan, 550 U.S. 465 (2007), the United States Supreme Court pointed


                                                26
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out they had not previously found an “informed and knowing” requirement in the decision

to not offer evidence. But in Landrigan’s habeas petition, the question was not whether an

“informed and knowing” requirement should be imposed, but whether the state court was

reasonable in finding that existing federal law did not require such requirement at the time of

his postconviction hearing. The Landrigan Court also noted that if there were such a

requirement, it would not be in issue for that defendant. It is clear from a review of the

transcript that Landrigan, did not want to offer mitigation evidence. The questions by counsel

and the court were unequivocal. That is not the case with Wertz.

       There must be some standard established in this court as to how a circuit court should

accommodate a defendant who wishes to waive all or part of a mitigation defense or

investigation. The United States Supreme Court has recognized that “the penalty of death is

qualitatively different from a sentence of imprisonment, however long.” Woodson v. North

Carolina, 428 U.S. 280, 305 (1976). This qualitative difference “calls for a greater degree of

reliability when the death sentence is imposed.” Lockett v. Ohio, 438 U.S. 586, 604 (1978).

Justice O’Connor stated in a concurring opinion that “extraordinary measures” should be

followed to ensure due process in a capital case. See Eddings v. Oklahoma, 455 U.S. 104, 118

(1982). The determination of whether a capital defendant has made a knowing and voluntary

waiver of a mitigation investigation or defense must be viewed in light of this heightened

standard of review.

       Several courts have opined on whether a defendant may waive the investigation into

mitigating evidence. See State v. Johnson, 401 S.W.3d 1,15 n.8 (Tenn. 2013) (collecting cases).


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The Tennessee Supreme Court, in Zagorski v. State, 983 S.W.2d 654, 660 (Tenn. 1998),

established a three-prong process for situations in which a defendant wishes to forego

mitigation in a capital trial. Defense counsel must inform the court outside the presence of the

jury of this decision by the defendant. To protect the defendant’s interests, and to preserve a

complete record, the trial court must (1) inform the defendant of his right to present mitigating

evidence and make a determination on the record whether the defendant understands this right

and the importance of presenting mitigating evidence in both the guilt phase and the

sentencing phase of trial; (2) inquire of both the defendant and counsel whether they have

discussed the importance of mitigating evidence, the risks of foregoing the use of such

evidence, and the possibility that such evidence could be used to offset aggravating

circumstances; (3) after being assured that the defendant understands the importance of

mitigation, inquire of the defendant whether he or she desires to forego the presentation of

mitigating evidence. This procedure will ensure that the accused has intelligently and

voluntarily made a decision to forego mitigating evidence.

       Alabama has adopted the Zagorski procedure for waiver of mitigation. Whitehead v. State,

955 So. 2d 448, 454 (Ala. Crim. App. 2006). The Utah Supreme Court has held that a

defendant may waive mitigation and affirmed such a waiver following a “lengthy and searching

inquiry” into whether the defendant was aware of the nature and purposes of mitigation

evidence and whether defendant was making a knowing and voluntary waiver. State v. Maestas,

299 P.3d 892, 961 (2012).

       The petitioner appears to seek a bright-line rule that a capital defendant cannot waive


                                              28
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a mitigation investigation for the reason that a defendant cannot make a knowing and informed

decision without a full and complete investigation of all possible facts and circumstances that

could be considered as mitigating to a juror. A New Jersey court has held that a capital

defendant cannot waive mitigation, and defense counsel may present mitigation evidence over

the objection of the defendant. See State v. Hightower, 518 A.2d 482 (N.J. 1986). This position

is contrary to the basic principle that the defense belongs to the defendant. “The defendant,

and not his lawyer or the State, will bear the personal consequences of a conviction. It is the

defendant, therefore, who must be free personally to decide whether in his particular case

counsel is to his advantage. And although he may conduct his own defense ultimately to his

own detriment, his choice must be honored out of “that respect for the individual which is the

lifeblood of the law.” Illinois v. Allen, 397 U.S. 337, 350-51 (Brennan, J., concurring). A

defendant in a capital case may knowingly and voluntarily waive the investigation of possibly

mitigating circumstances and may waive or limit the presentation of possibly mitigating

circumstances to a jury.

       In sum, Wertz’s counsel was ineffective for failing to conduct an investigation into

mitigating evidence or presenting sufficient evidence of a knowing and voluntary waiver of

mitigation so that it can be said that Wertz knowingly and voluntarily waived his right to

present mitigating evidence. As demonstrated by the evidence adduced at the Rule 37 hearing,

defense counsel failed to present easily obtained mitigating evidence. Further, Arkansas does

not currently have a protocol or procedure for determining the voluntariness of a defendant’s

waiver of mitigation. This court should require that any waiver of investigation or presentation


                                              29
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of mitigating circumstances in a capital trial be a knowing and voluntary waiver. To ensure a

valid waiver a trial court should make an inquiry on the record as to whether the defendant

understands the nature and purposes of mitigation evidence. The trial court should further

make inquiry to ascertain whether the defendant knowingly and intelligently makes any waiver

of an investigation or presentation of evidence related to mitigating evidence. The court should

then make specific findings on the record as to whether any waiver by the defendant is

knowing and voluntary.

       HART, J., joins in this concurrence in part and dissent in part.

       Taylor Law Partners, LLP, by: W.H. Taylor, William B. Putman, and Jeff Mitchell, for
appellant.
       Dustin McDaniel, Att’y Gen., by: Ashley Argo Priest and Rebecca Bailey Kane, Ass’t Att’y
Gen., for appellee.




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