KAREN R. BAKER, 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:
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, 430 S.W.3d 759, 761.
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, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Claims of ineffective assistance of counsel are reviewed under the following standard:
Burton v. State, 367 Ark. 109, 111, 238 S.W.3d 111, 113 (2006) (quoting Strickland, 466 U.S. at 687, 104 S.Ct. 2052).
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
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, 428 S.W.3d 446. 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).
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:
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 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, 2010 WL 5185781 (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 pretrial investigation. The circuit court's order stated:
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.
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, 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
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 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
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
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.
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 Quails, 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,
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 4, 2010 WL 5185781. In order to demonstrate prejudice, Wertz was required to establish that there was a reasonable probability that, had counsel performed further investigation
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.
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, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Sanford v. State, 342 Ark. 22, 25 S.W.3d 414 (2000); and Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (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
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, 433 S.W.3d 252 (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:
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
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 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,
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
Id., at 32, 25 S.W.3d at 421.
Here, Bryant did present mitigation evidence. Accordingly, Wertz's case is 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:
Id., 342 Ark. 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
Further, although Chism testified about how she would conduct her mitigation investigation and the evidence she had discovered about Wertz, including the introduced photos, this testimony did not amount to specific mitigation evidence demonstrating that Wertz was prejudiced.
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, 120 S.Ct. 1495, 146 L.Ed.2d 389 (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:
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, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). However, Wertz's case is also distinguishable from Wiggins. In Wiggins, the mitigating evidence counsel failed to discover was "powerful":
Wiggins, 539 U.S. at 534, 123 S.Ct. 2527.
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, 123 S.Ct. 2527.
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, 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:
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:
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 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
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, 123 S.Ct. 2527, 156 L.Ed.2d 471 (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 a capital defendant can waive defense counsel's investigation of mitigation evidence. Wertz's purported waiver is contained in the trial record:
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
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 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, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007), the United States Supreme Court pointed 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, 96 S.Ct. 2978, 49 L.Ed.2d 944 (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, 98 S.Ct. 2954, 57 L.Ed.2d 973 (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,
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). 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 brightline rule that a capital defendant cannot waive 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, 214 N.J.Super. 43, 518 A.2d 482 (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, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970) (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
HART, J. Joins in this concurrence in part and dissent in part.
