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Holley v. State

Supreme Court of Arkansas

June 1, 2017

ZACHARY HOLLY APPELLANT
v.
STATE OF ARKANSAS APPELLEE

         APPEAL FROM THE BENTON COUNTY CIRCUIT COURT [NO. 60CR-2014-1089] HONORABLE BRAD L. KARREN, JUDGE

          Robert M. "Robby" Golden, for appellant.

          Leslie Rutledge, Att'y Gen., by: Kristen C. Green and Brooke Jackson Gasaway, Ass't Attorneys Gen., for appellee.

          JOSEPHINE LINKER HART, Justice

         Zachary Holly was convicted by a Benton County jury of capital murder, rape, kidnapping, and residential burglary. Holly received the death penalty for capital murder, life sentences for the rape and kidnapping counts, and a twenty-year sentence for the residential burglary. On appeal, Holly raises three points, arguing that the circuit court erred by (1) denying his motion for a directed verdict for the residential-burglary charge because there was insufficient evidence that he entered or remained unlawfully in the home of another person; (2) granting the State's motion in limine and finding that his offer to plead guilty to capital murder in exchange for a life sentence was not admissible as a mitigating factor showing his acceptance of responsibility for his crimes; and (3) denying his motion to suppress his custodial statement. Our jurisdiction is pursuant to Arkansas Supreme Court Rule 4-3(i) (2017). We affirm.

         Because Holly only challenges the sufficiency of the evidence with regard to his residential-burglary conviction, only a somewhat abbreviated recitation of the facts is necessary. The victim, J.B., was a six-year-old girl that Holly and his wife Amanda often babysat while her mother, DesaRae Crouch, [1] was at work. Both Holly and his wife had a key to the house where the victim lived. Holly confessed to entering the residence by an unlocked side door after J.B.'s mother had gone to sleep. He went to the child's room, woke her, picked her up, and carried her to a nearby vacant house. Holly stated that after removing the child's pants, he "tried to stick it in, " meaning penetrate the victim's vagina with his penis. Holly recalled that he then tied the child's pants in a knot around her neck and twisted the pants until she stopped kicking. A medical examiner determined the cause of death was ligature strangulation. A swab of the victim's vagina revealed the presence of semen that was a DNA match with Holly's.

         We first consider Holly's argument that the circuit court erred in denying his motion for a directed verdict with regard to the residential-burglary charge. The pertinent evidence adduced at trial is as follows. DesaRae Crouch testified that she was a close friend of Holly's wife, Amanda. She had two young daughters who stayed with the Hollys while she was at work. Crouch stated that she trusted the Hollys to feed and bathe her children.

         Crouch stated that on November 19, 2012, she ended her shift at a local convenience store just after 11:30 p.m. As usual, she collected her children from the Hollys' residence next door where they had fallen asleep on the Hollys' couch. Crouch carried one of her children, L.B., while Holly carried J.B. L.B. and J.B. shared the same bed. However, during the night, L.B. had a nightmare, so Crouch took her to her room to sleep. She left the side door unlocked for her boyfriend or for Amanda Holly to come in and get medicine. When Crouch awoke at approximately 6:30 the next morning, she could not find J.B.

         In his confession, which was introduced into evidence, Holly stated that he woke in the middle of the night on November 19, 2012. He claimed he had an upset stomach and got out of bed in search of some "Pepto." Clad only in his bathrobe, Holly entered the victim's house by the unlocked side door. In his confession, Holly denied knowing why he entered the house. According to Holly, upon entering, he just looked around. He saw that the door to Crouch's room was open and that she was asleep. He then went to the children's bedroom where he found J.B. and L.B. asleep. He woke J.B., and while she was still groggy, he told her to come with him. He carried J.B. from the house. In Holly's statement to the police, he claimed that he had not planned any of the events that transpired.

         At trial, Holly preserved this issue by making the following directed-verdict motion:

The last charge in the information, I believe, is residential burglary. That's codified at [Arkansas Code Annotated section] 5-39-201. Residential burglary. A person commits residential burglary if he or she enters or remains unlawfully in a residential occupiable structure of another person with the purpose of committing in the residential occupiable structure an offense punishable by imprisonment. Your Honor, with regard to this one, I'm going to need to direct the Court's attention also to [Arkansas Code Annotated section] 5-39-101 because the definition is going to be important there. In order to be guilty of residential burglary, you must enter or remain unlawfully. "Enter or remain unlawfully" is defined in [section] 5-39-101(2)(a). That definition says, "Enter or remain unlawfully" means to enter or remain in or upon premises when not licensed or privileged to enter or remain in or upon the premises." Your Honor, in this case, the proof has been that Desirea Bridgeman, through her testimony, was that Zachary Holly and Amanda Holly both had keys to her residence. They had the ability to come and go as they pleased when they were taking care of the child. They were allowed to go in and get things for the child. I believe she did state that Amanda could come over and get the medicine that night, but her testimony was they both had keys whenever I asked her about whether or not they could come in the house and then she said, of course, he had keys. So, Your Honor, would I contend that residential burglary the aspect of the enter or remain unlawfully has not been met in this case, and we would move for a directed verdict with regard to that charge, Your Honor, and specifically, just with regard to the fact he did not enter or remain unlawfully and that is an element of that crime. And the testimony we have before us is-is inconsistent with that Your Honor.

         The circuit court denied Holly's directed-verdict motion.

         Holly first argues that the circuit court erred by denying his motion for a directed verdict for the residential-burglary charge because there was insufficient evidence that he entered or remained unlawfully in the home of another person. He asserts that neither DesaRae Crouch nor any other witness testified that he was "without authority to enter or remain in her home." Holly notes that the door was unlocked and Amanda Holly had permission to enter and get medicine. This argument is not persuasive.

         When we review the denial of a directed-verdict motion challenging the sufficiency of the evidence, we view the evidence in the light most favorable to the verdict. Conway v. State, 2016 Ark. 7, 479 S.W.3d 1. That means that we consider only the evidence that supports the verdict and determine whether the verdict is supported by substantial evidence. Id. Substantial evidence is evidence of sufficient certainty and precision to compel a conclusion one way or another and pass beyond mere suspicion or conjecture. Id.

         To sustain a conviction for residential burglary, the State must show that a defendant entered or remained unlawfully in the residence of another person with the purpose of committing an offense punishable by imprisonment while inside the residence. Ark. Code Ann. § 5-39-201(a)(1) (Repl. 2013). "To enter or remain unlawfully" is defined by statute to mean "to enter or remain in or upon premises when not licensed or privileged to enter or remain in or upon the premises." Ark. Code Ann. § 5-39-101(2)(A).

         Holly mischaracterizes Crouch's testimony. It is true that Crouch described a close friendship with Amanda Holly and that she allowed Amanda to enter her home to get medicine. However, there is no evidence that she had extended to Zachary Holly a similar privilege, much less a privilege to enter her home and take her children from their bed. See Holt v. State, 2011 Ark. 391, at 9, 384 S.W.3d 498, 505 (holding that Holt was not privileged to remain in the victim's residence once he began telling her that no one could have her if he could not and stabbed her); Young v. State, 371 Ark. 393, 402, 266 S.W.3d 744, 750 (2007) (holding that Young was not licensed or privileged to remain in the victim's trailer after Young began stabbing the victim and removing his property). While it is not disputed that the door was left unlocked, Crouch testified that she left the door unlocked for her boyfriend and for Amanda-not Zachary Holly. Accordingly, the circuit court did not err in denying Holly's directed-verdict motion.

         Holly further argues that the residential-burglary statute contains a second element, that he entered the residence "having the purpose to commit a felony in that residence." He asserts that the State failed to prove this element by substantial evidence. We need not address this argument because it was not raised to the circuit court. On appeal, an appellant is bound by the scope and nature of his directed-verdict motion. See Conte v. State, 2015 Ark. 220, 463 S.W.3d 686. Furthermore, we have held that a sufficiency-of-the-evidence argument that is not properly preserved by a directed-verdict motion is not subject to our review under Arkansas Supreme Court Rule 4-3(i). Foster v. State, 2009 Ark. 454.

         For Holly's second point on appeal, it is necessary to provide some additional facts and procedural history to give his argument proper perspective. Prior to his trial, Holly filed a document styled "Proffer of Guilty Plea" in which he offered to change his plea of not guilty in exchange for the State forgoing the death penalty. The State rejected the offer, and moved in limine to preclude Holly from telling the jury about it. Holly sought to use this plea proffer as evidentiary support for the mitigating factor that he had accepted responsibility for the crime prior to the beginning of the trial. Relying on Howard v. State, 367 Ark. 18, 238 S.W.3d 24 (2006), and Rule 25.4 of the Arkansas Rules of Criminal Procedure, the circuit court granted the State's motion in limine. The circuit court specifically found that the attempted guilty plea was "not admissible" and, when pressed for a ruling by Holly's trial counsel, found that the relevance of the proffered plea proffer was "moot." Holly then proffered a Form 2 verdict form listing the acceptance of responsibility for his crime as a mitigating circumstance. This mitigator was not submitted to the jury; however, a similar mitigator, that Holly confessed to his crime, was submitted and unanimously found by the jury to be a mitigator.

         Turning to his argument, Holly asserts that the circuit court erred by granting the State's motion in limine and finding that his offer to plead guilty to capital murder in exchange for a life sentence was not admissible as evidence of a mitigating factor, i.e., acceptance of responsibility for his crimes. Arguing further, Holly states that the circuit court erroneously relied on Howard, and Arkansas Rule of Criminal Procedure 25.4 in its decision to prohibit the jury from "even being informed that there was evidence that [he] was willing to accept responsibility for the crime prior to the trial. Holly contends that the circuit court's ruling violated the plain language of Arkansas Code Annotated section 5-4-602(4)(B)(i), which states, "Evidence as to any mitigating circumstance may be presented by either the State or the defendant regardless of the evidence's admissibility under the rules governing admission of evidence in a trial of a criminal matter." Holly argues further that McGehee v. State, 338 Ark. 152, 992 S.W.2d 110 (1999), and Hobbs v. State, 273 Ark. 125, 617 S.W.2d 347 (1981), demonstrate that the Arkansas Supreme Court has consistently applied the plain language of section 5-4-602(4)(B)(i), that evidence offered for purposes of mitigation in a capital case should not be refused simply because it would not be admissible in trial. Further, citing Lockett v. Ohio, 438 U.S. 586, 604 (1978), Holly asserts that the Eighth and Fourteenth Amendments require that in capital cases, a circuit court cannot preclude a jury from considering, as a mitigating factor, "any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death."

         Regarding the circuit court's reliance on Howard, Holly argues that it is clearly distinguishable from the case at bar. He asserts that the question in Howard was whether defense counsel was ineffective for failing to submit as mitigation evidence the fact that the State had twice extended the offer of a life sentence to the defendant prior to trial. 367 Ark. at 48, 238 S.W.3d at 47. The Howard court cited Lockett for the proposition that a death-penalty statute must not prohibit the jury's consideration of relevant mitigating evidence, and it noted that under Arkansas law "relevant mitigating evidence" included the character or history of the offender or the circumstances of the offense. Id. Although the court also cited Rule 25.4(a) in ultimately holding that Howard's counsel was not ineffective, the decision does not hinge on that rule. Furthermore, the Howard court did not consider the plain language of section 5-4-602(4)(B)(i), and his reason for proffering the plea-bargain evidence was much different. Holly contends that "presumably, " Howard's argument was that his trial counsel should have put forth the evidence that he had twice rejected a life-over-death offer from the State to establish that the State had reservations regarding the prosecution of Howard or that he was unwilling to plead guilty because he was innocent of the charges, neither of which constitutes relevant mitigation evidence. In further distinguishing Howard, Holly asserts that the State's motivation in making a plea proffer has no bearing on the character or history of the offender or the circumstances of the offense. Likewise, a defendant's claim of innocence is not relevant in the penalty phase of a capital case as mitigation. In contrast, he proffered his guilty plea to show that he was willing to accept responsibility for his crime, which provides evidence of his character.

         The State argues that Holly's proffered guilty plea is specifically excluded by Rule 25.4. Furthermore, it contends that Arkansas Code Annotated section 5-4-602(4)(B)(i) does not exclude the applicability of the Arkansas Rules of Criminal Procedure in the sentencing phase of capital cases. Further, it rejects Holly's efforts to distinguish Howard, claiming that it shows that this court correctly applied Arkansas Rule of Criminal Procedure 25.4 to the penalty phase and denied Howard's ineffective-assistance claim. Howard, 367 Ark. at 48, 238 S.W.3d at 47. The State argues further that Holly's guilty-plea proffer was not an attempt to accept responsibility but an endeavor to avoid a sentence of death.

         A circuit court has wide discretion in admitting evidence, including that presented during the penalty phase of the trial. McGehee, supra. On appeal, we will not reverse the ...


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