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                  SUPREME COURT OF ARKANSAS
                                        No.   CR-15-899

ZACHARY HOLLY                                      Opinion Delivered   June 1, 2017

                                APPELLANT          APPEAL FROM THE BENTON
V.                                                 COUNTY CIRCUIT COURT
                                                   [NO. 60CR-2014-1089]
STATE OF ARKANSAS
                                                   HONORABLE BRAD L. KARREN,
                                  APPELLEE         JUDGE

                                                   AFFIRMED.

                             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
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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


       1
        Ms. Crouch’s former surname was Bridgeman.

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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

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       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


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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.


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       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


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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


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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


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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

circuit court’s ruling absent an abuse of discretion. Id.

       We note first that, in an evidentiary context, “relevant” and “admissible” are not

synonymous. Relevant evidence is defined by Arkansas law as “evidence having any tendency

to make the existence of any fact that is of consequence to the determination of the action

more probable or less probable than it would be without the evidence.” Scherrer v. State, 294

Ark. 227, 742 S.W.2d 877 (1988) (quoting Ark. R. Evid. 401). Admissible evidence is a

subset of relevant evidence; the interplay between the concepts is described by Rule 402 of

the Arkansas Rules of Evidence, which states, “All relevant evidence is admissible, except as

otherwise provided by statute or by these rules or by other rules applicable in the courts of

this State. Evidence which is not relevant is not admissible.” Arkansas Rule of Criminal

Procedure 25.4 entitled “Discussions, Agreements, Statements, Pleas and Judgments Not

Admissible,” is a rule of admissibility. It states:

       (a) No evidence of any discussion between the parties, of any statement made by the
       defendant, or of the fact that the parties engaged in plea discussions shall be admissible
       in any criminal, civil, or administrative proceeding, except in a proceeding to:

       (i) terminate or modify such an agreement;

       (ii) secure concurrence in a plea proffer;

       (iii) secure acceptance of a plea;

       (iv) secure withdrawal of a plea; or


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       (v) cause a judgment based upon a plea to be reversed or held invalid.

       (b) Irrespective of whether a plea of guilty or nolo contendere is the result of a plea
       proffer, if it is not accepted or is withdrawn, or results in a judgment which is reversed
       or held invalid on direct or collateral review, neither the plea nor any judgment
       resulting therefrom, nor any statement by the defendant in connection with the
       making or acceptance of the plea or as a basis for sentence or other disposition thereon,
       is admissible in evidence against the defendant in any criminal, civil, or administrative
       proceeding.

Ark. R. Crim. P. 25.4. As Holly argues, in McGehee and in Hobbs, we have held that rules

of admissibility do not preclude a criminal defendant from presenting relevant mitigation

evidence.

       We note that the McGehee court stated that section 5-4-602(4)(B)(i) does not open the

way for the admission of irrelevant evidence. In the case before us, what Holly sought to

prove by the admission of the plea proffer was that he was taking responsibility for his crime.

While Holly argues that the plea proffer tended to show that he was accepting responsibility

for his actions, language in the plea proffer fails to support this proposition. Proof that Holly

offered to plead guilty in exchange for a lesser sanction is not evidence that Holly was taking

responsibility for his crime. At the time he made his proffer, full responsibility for his crime

carried with it the death penalty. While we acknowledge that the weight to be afforded

relevant evidence is a decision for the jury, to be relevant, the evidence must tend to prove

a fact in issue. McGehee, supra. Evidence that tended to show that Holly was avoiding full

responsibility for his crime is therefore not relevant and therefore not admissible. Id. We are

mindful that the circuit court excluded the proffered plea proffer because it found that it was

not admissible under Rule 25.4 and found that the relevancy of the evidence was “moot.”


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However, we do not reverse an evidentiary ruling by a circuit court when it uses the wrong

reason to reach the right result. Dandridge v. State, 292 Ark. 40, 727 S.W.2d 851 (1987). In

this instance, Holly’s plea proffer was conditioned on the State’s removing the death penalty

from the jury’s consideration, leaving life without the possibility of parole as the only

permissible punishment. Thus, in our view, the offer to plead with the stated condition was

not relevant mitigating evidence as it did not support the purpose for which it was offered.

       Our holding is consistent with Lockett and its progeny. The analysis of the Sixth

Circuit in Owens v. Guida, 549 F.3d 399 (6th Cir. 2008) is illustrative. Owens is a Tennessee

death-penalty case in which the condemned woman asserted that the State violated her right

to present as mitigating evidence proof that she had been willing to accept the State’s offer of

a life sentence in return for a guilty plea. Id. The Owens court, in affirming a federal district

court’s denial of federal habeas relief, stated:

               In Lockett, a plurality of the Supreme Court said that “the Eighth and
       Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital
       case, not be precluded 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.” Id. at 604, 98 S. Ct. 2954
       (plurality opinion). As a constitutional requirement, this rule trumps other limits on
       admissible evidence, such as hearsay. Yet the Court qualified this broad statement with
       a footnote stating that “[n]othing in this opinion limits the traditional authority of a
       court to exclude, as irrelevant, evidence not bearing on the defendant's character, prior
       record, or the circumstances of his offense.” Id. at 604 n. 12, 98 S. Ct. 2954.

Owens, 549 F.3d at 419. As in the case at bar, the Owens court similarly rejected the

appellant’s argument that the evidence was needed to support a mitigator that she had taken

responsibility for her crime. Id. It cited with approval the Tennessee Supreme Court’s

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conclusion that Owens’s confession, which was entered into evidence, was sufficient proof

to support that mitigator. Id. Furthermore, the Owens court held that a guilty plea

conditioned on the accused avoiding the death penalty was not evidence that she had accepted

responsibility for her crime; rather, it showed “she was less interested in accepting

responsibility and more interested in avoiding the electric chair, a motivation that is much less

persuasive as a mitigating factor.” Id. at 420. For the foregoing reasons, we hold that the

circuit court’s decision to exclude Holly’s proffered plea proffer is not reversible error.

       Holly’s third and final point on appeal concerns the denial of his motion to suppress

his confession. In Jackson v. Denno, 378 U.S. 368 (1964), the Supreme Court held that a

criminal defendant is entitled to a hearing regarding the voluntariness of any confession before

it can be admitted into evidence. The Denno court stated:

               It is now axiomatic that a defendant in a criminal case is deprived of due process
       of law if his conviction is founded, in whole or in part, upon an involuntary
       confession, without regard for the truth or falsity of the confession, and even though
       there is ample evidence aside from the confession to support the conviction. Equally
       clear is the defendant's constitutional right at some stage in the proceedings to object
       to the use of the confession and to have a fair hearing and a reliable determination on
       the issue of voluntariness, a determination uninfluenced by the truth or falsity of the
       confession.

Denno, 378 U.S. at 378 (citations omitted). A criminal defendant’s Fifth Amendment right

to counsel attaches during custodial interrogation. Airsman v. State, 2014 Ark. 500, 451

S.W.3d 565 (citing Edwards v. Arizona, 451 U.S. 477 (1981)). Once an accused has invoked

his right to have counsel present during custodial interrogation, the Fifth Amendment

precludes further questioning by police until counsel has been made available unless the

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accused validly waives his right to counsel. Id. A valid waiver requires that the accused

himself initiates further contact with police. Id. However, the “impetus” must come from

the accused himself, not the police. Id. (citing Metcalf v. State, 284 Ark. 223, 681 S.W.2d 344

(1984)).

       Holly’s Denno hearing was held on August 1, 2014. Prior to taking testimony, audio

recordings of Holly’s “interaction” with police and the transcripts of those recordings were

admitted into evidence by stipulation. There were two recordings made on November 20,

2012, a formal interview inside the Bentonville Police Department, and an informal interview

in the parking lot outside the Bentonville Police Department. On November 21, 2012, a

recording was made during an encounter with police at the apartment complex where Holly’s

brother resided. On November 23, 2012, there were phone calls from Holly to the

Bentonville police and from the Bentonville police to Holly, as well as a formal interview

inside the Bentonville Police Department.          On November 26, 2012, Holly gave his

confession inside the Bentonville Police Department.

       Detective Mike Stegall testified that his first interaction with Holly occurred in a

Bentonville Police Department Criminal Investigation Division interview room. Stegall

stated that the purpose of the interview was to establish a sequence of events because he

viewed Holly as a potential witness. Stegall first spoke to Amanda before interviewing Holly.

Holly was not Mirandized, nor was he under arrest. The interview lasted sixteen minutes.

       The next day, Stegall encountered Holly outside the Maddox Apartments off of Eighth


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Street in Bentonville, where Holly’s brother resided. Amanda and other unidentified

individuals were present. Stegall asked Holly to submit to a follow-up interview, but Holly

declined. According to Stegall, Holly stated, “I think I want an attorney” and “[U]ntil I see

DNA results I’m not doing anything.” That was Stegall’s last interaction with Holly.

       Bentonville detective Sergeant Kris Moffit testified that on November 20, 2012. he and

Detective Wiseman made contact with Holly at the intersection of Southeast A and Eighth

Streets in Bentonville at approximately 2:10 in the afternoon. He knew that Stegall had

already interviewed him, but asked Holly to return to the police department for a second

interview. According to Moffit, he made it clear that participation in the interview would be

strictly voluntary and that he would be free to leave at any time. The interview started after

Holly ate the lunch that he had with him. Including a twenty-minute break, the interview

lasted for one hour and 41 minutes. According to Moffit, he knew from Stegall that Holly

had asked to speak with an attorney. After a discussion, they decided against further contact

with Holly unless he initiated it. On November the 23, Holly called and scheduled the

interview. Moffit assured Holly that it was understood that the interview was voluntary.

Holly was interviewed and given a ride home. The next contact with Holly occurred on

Monday, November 26. After the November 23 interview, Moffit understood that Holly

expected law enforcement to contact him for a follow-up interview. Moffit stated that he

called on November 26 to ask Holly to come to the police department. When he made the

phone call, Amanda answered. He explained that the police wanted to sit down and talk with


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him and asked for both of them to come to the police department. She agreed.

       When the Hollys arrived at the police station on November 26, Holly was brought to

an interview room. Prior to his interview with Holly, Moffit stated that he read Holly his

Miranda rights because a decision had been made to arrest him, and he was in custody. Moffit

opined that Holly seemed to understood his Miranda rights. He likewise opined that Holly did

not seem to be under the influence of drugs or alcohol. Moffit stated that he was mindful that

Holly had invoked his right to counsel, which meant that to legally question him further,

Holly had to initiate the contact. He asserted that Holly had done so on November 23.

Moffit acknowledged that Holly had asked for his mother, for Amanda, and for a cigarette, but

he was told that they would not honor these requests until the interview was over.

       Bentonville Detective J.C. Wiseman testified that he and Detective Moffit watched

Stegall’s interview with Holly on November 20, 2012.           He and Moffit subsequently

approached Holly, who was with a group of people outside an apartment complex, and invited

him to submit to a follow-up interview. He stressed that participation was voluntary and that

he could leave at any time. Holly agreed and submitted that day to a 40-minute interview.

       Wiseman testified further that on November 21, 2012, he learned from Stegall that

Holly had invoked his right to counsel. However, Holly called the police department and

agreed to a supplemental interview. He and Moffit gave Holly a ride to the Benton County

Sheriff’s Office on November 23, 2012, and gave him a ride home after the interview.

Wiseman also testified that he was present when they arranged for an interview with Holly on


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November 26, 2012. Holly was read his Miranda rights because he was going to be arrested

and was not free to leave during the interview. According to Wiseman, Holly was “alert,

conscious, cognizant of what was going on,” and appeared to understand his Miranda rights.

At no point in the interview did Holly invoke his right to counsel or his right to remain silent.

       Benton County Deputy Jeremy Felton testified that he was assisting the Bentonville

Police Department with the Holly investigation. He also interviewed Holly. According to

Felton, Holly told him that he had contacted Moffit to submit to a further interview. Felton

further testified that prior to speaking with Holly, he read him his Miranda rights. Holly told

him that he had spoken with “several attorneys” who advised him against submitting to an

interview with police, but he chose to speak with them anyway. According to Felton, when

he concluded his interview with Holly, Holly expected a follow-up interview with Bentonville

police. He was aware that Holly had only a tenth-grade education and claimed to read at the

third-grade level; however, he “absolutely believed” that Holly had sufficient intellectual

capacity to participate in the interview.

       After arguments of counsel, the circuit court denied Holly’s motion to suppress. It

made extensive findings of fact and conclusions of law:

       The Court finds that the defendant initiated the contact with the police after invoking
       his right to counsel for an additional interview. The defendant signed a waiver of rights
       form concerning the additional interview. The defendant signed a waiver of rights
       form when he was at a custodial statement, and the defendant was knowingly and
       voluntarily waiving that right. Based upon the length of the interrogation, it's not such
       that it overrode the defendant’s will or was coercive or unreasonable. The defendant’s
       request for his wife or mother was not an unequivocal right to counsel or right
       to remain silent. Defendant’s previous contact with police history shows that he was

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able to terminate earlier interviews. The Court has the following findings of fact: That
the defendant is being charged with Capital Murder, Rape, Kidnapping, Residential
Burglary. That on the morning of November 20, 2012, it was determined by the State
that J.B. was the victim of a homicide. That on November 20, 2012, at 8:42 a.m.,
Detective Mike Stegall of the Bentonville Police Department conducted an interview
with the defendant, Zachary Holly. Defendant was not given a statement of rights.
State’s Exhibit No. 7, which is the November 20, 2012, interview conducted at 2:27
p.m. between Detective Kris Moffit and Jason or Jerrod Wiseman, was an interview at
the Bentonville Police Department. The defendant was not given a statement of rights.
Exhibit 7, page 58, defendant was told that he was not accused of anything. Defendant
was told he was there voluntarily. Defendant had asked to go home. Detective Moffit
then told the defendant he was free to leave at any time. Exhibit 7, page 60, the
defendant stated he wanted to go home. Detective Moffit stated that was all right.
Exhibit 7, page 61, defendant requested an additional interview for tomorrow morning,
the next day. The current interview was then terminated. There was an exhibit that
was dated November 20, 2012, at 4:17 p.m. It was a conversation with Zach Holly
in the parking lot of the Bentonville Police Department after the second interview.
Kris Moffit told the defendant he wasn’t being truthful. The defendant said, I’m going
home, and the defendant then left. Exhibit 11, a conversation with Zachary Holly on
November 20, 2012. Jerrod Wiseman testified, and the transcript showed, that at
approximately 4:17 p.m., which was after the conversation with Zachary Holly in the
Bentonville Police Department parking lot, defendant consented to giving Jerrod
Wiseman defendant’s shoes, jacket, bandanna, hat, pants, and socks to Detective
Wiseman. On November 23rd, 2012, Detective Stegall testified the defendant
unequivocally invoked his right to counsel. Detectives Moffit and Wiseman testified
that they terminated all contact with the defendant. On November 23rd, 2012,
Detectives Moffit and Wiseman testified that the defendant contacted Detective Moffit
for an additional interview and the defendant requested a ride to the Bentonville Police
Department for the additional interview. In an exhibit that was entered dated
November 26, 2012, with Jeremy Felton from the Benton County Sheriffs office,
conducted the additional interview with the defendant. Defendant was provided a
statement of rights form and waived his right to counsel, his right to appointed counsel
if he could not afford one, his right to stop questioning at any time, and his right to
consult an attorney. The defendant then executed a waiver of rights form. Detective
Moffit then testified the defendant requested information about the additional interview
and that he would be contacted. On November 26, 2012, Detective Moffit testified
that he did contact the defendant’s wife about information from the additional
interview. Exhibit 21, State’s Exhibit 21, dated November 26, 2012, was an interview
with the defendant. It was one hour and 21 minutes. Detective Moffit and Detective
Wiseman provided defendant his statement of rights, including his right to remain

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       silent, his right to speak to an attorney, his right to be appointed an attorney, and his
       right to stop questioning. Detective Moffit and Wiseman stated that defendant was
       under arrest at that time and was not free to leave. The Court had reviewed the DVD
       and saw that the defendant had stayed calm throughout the interview until he
       concluded that he was going to prison. The detectives’ use of profanity was
       minimal and was not patently offensive. Exhibit 21, page 17, the defendant requests --
       in fact earlier when they’re discussing -- were talking -- the detectives talked to
       the defendant, it was the defendant that requested that they change the subject and
       talk about what they wanted to, which was about the investigation. . . .. Exhibit 21,
       page 19, defendant requested his wife be present. Exhibit 21, page 35, the defendant
       requested a cigarette. Detective Moffit told the defendant, Well, let’s get this started
       and then we'll have a cigarette. Exhibit 21, page 36, the defendant requested his wife.
       Detective Moffit said, We’ll give you an opportunity to talk to her. Exhibit 21, page
       31 and page 36, the defendant concludes he is going to prison.

The circuit court concluded that although Holly “unequivocally” had invoked his right to

counsel on November 21, he made a valid, knowing, and intelligent waiver of that right by

initiating further contact with the police on November 23 and 26 and voluntarily submitting

to an interview. He memorialized this waiver by executing waiver-of-rights forms on

November 23 and November 26. Further, while Holly has limited education and academic

achievement, he nonetheless demonstrated appreciation for his rights by terminating interviews

twice before the interview in which he gave his confession. Finally, the circuit court

concluded that promises by the police to allow him to see his wife, his mother, and his

stepmother and to smoke a cigarette after the interview had finished did not induce Holly to

make his statement.

       Subsequent to the Denno hearing, Holly filed another motion to suppress his custodial

statement. He alleged that the police had used Amanda to coerce him into submitting to the

interview that resulted in his confession. Unlike the Denno hearing, the focus was on how the

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police used Amanda to compel Holly to submit to police interviews after he had invoked his

right to counsel.

       Amanda testified that at the time of the murder, she had been married to Holly for

approximately eight months. However, she stated that they had known each other for fifteen

years and had been a “couple.” On the day that J.B.’s body was discovered, she recalled being

taken to the police station that morning and again that evening. The police told her that Holly

was a suspect, which upset her. She estimated that she spoke with the police at least five or

six times that week. Amanda stated that she attempted to take two polygraph tests, but the first

time, on November 22, they declined to administer the test because she had not “slept enough

or eaten enough.” She took and passed a polygraph test the next day. Amanda testified further

that Wiseman and Moffit interviewed her further, and they emphasized that they still thought

Holly was a suspect. Amanda stated that she heard Holly tell Stegall on November 21 that

he did not want to speak to the police again without a lawyer. However, after the police left,

she told Holly that he had one of two choices: “Take the polygraph and clear his name or I

take my son and I leave.” Nonetheless, she stated that while she would have pressured Holly

to take the polygraph to clear his name completely, if the police had not advised her that they

wanted him to take a polygraph, she did not know whether she would have told him to take

the exam. She further testified that her son, who “spent every waking moment with J.B.” was

taken to her mother’s house after school and remained there until Holly’s arrest. She and her

mother had decided not to have him return home until Holly was cleared of wrongdoing.


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       Wiseman testified that Amanda was present at every interview involving Holly. He

confirmed that Amanda conducted a “controlled” phone call with Holly. Testifying further,

Wiseman stated that in the first interview on November 20, he was not aware that Holly relied

heavily on Amanda; however, when the interview was concluded, Holly stated that he had to

talk to his wife and his child. After the interview he conferred with Moffit and Stegall to

devise an interrogation strategy. Wiseman subsequently became aware that on November 21,

Holly had invoked his right to counsel. They nonetheless maintained daily contact with

Amanda. He admitted that they “hoped” she would “encourage” Holly to talk to them. He

confirmed that he conveyed to Amanda his belief that Holly had murdered J.B. However,

Wiseman insisted that “[n]o one in my presence, Detective Moffit or anyone else, asked

Amanda Holly to go ahead and ask [Holly] a question, collect any evidence, do anything of

that sort. We never implied to her the need to do that. Never offered Amanda anything to

do that.”

       Moffit testified that he spent approximately four hours interviewing Amanda Holly

between November 20 and November 23, the most contact he had with anyone in the case.

During the first interview that he observed with Stegall, he decided that Holly was a suspect.

Moffit stated that he built a rapport with Amanda because they “hoped” she would give them

information if she “heard” anything and convince Holly to submit to another interview.

However, throughout the process, Amanda steadfastly believed in Holly’s innocence. Moffit

admitted that after Holly had invoked his right to counsel, he did say to Amanda, “Please talk


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to him,” and the police “hoped” she would.

       After arguments of counsel, the circuit court denied the motion to suppress:

       I find that Amanda Holly was the one that wanted to do so, she was the one that
       contacted them and the police tried to hold her back. Mr. Holly signs a statement while
       he’s doing the polygraph exam that he's not being coerced. I find the State has met its
       burden by a preponderance of the evidence and that the defendant’s motion to suppress
       that statement by being coercive in violation of 2.2 and 2.3 is denied.

       On appeal, Holly argues that the circuit court erred by denying his motion to suppress

his custodial statement. He asserts that he “unequivocally” invoked his right to counsel, and

law enforcement did not “scrupulously” honor his request. Instead, the police used his wife

to “coerce” him to waive his right to counsel and give a custodial statement. Holly asserts that

the police had daily contact with Amanda and used her to pressure Holly into submitting to

additional interviews. Amanda acted on behalf of the police’s by threatening to leave him if

he did not submit to further interviews with the police. Holly concedes that there is no

Arkansas precedent on point but directs this court to United States v. Sanchez, 614 F.3d 876

(8th Cir. 2010) as support for the proposition that Amanda acted as an instrument of police

coercion to compel him to submit to an interview. Further, he cites Commonwealth v. Mahnke,

335 N.E.2d 660 (Mass. 1975) for the proposition that police may not accomplish through

private proxies what they cannot do directly. He contends that Amanda acted as an agent of

the police, regardless of whether she was intentionally doing so. We are not persuaded.

       We review a circuit court’s decision denying a defendant’s motion to suppress a

confession by making an independent determination based on the totality of the circumstances.


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Airsman, supra. However, a circuit court’s factual findings will be reversed only if they are

clearly against the preponderance of the evidence. Id. A statement made while in custody is

presumptively involuntary, and the burden is on the State to prove by a preponderance of the

evidence that a custodial statement was given voluntarily. Id.

       In Taylor v. Gill, 326 Ark. 1040, 934 S.W.2d 919 (1996), this court discussed the

principles of agency recognized by Arkansas law. The Taylor court stated that the two essential

elements of an agency relationship are (1) that an agent have the authority to act for the

principal and (2) that the agent act on the principal’s behalf and be subject to the principal's

control. Id. (citing Pledger v. Troll Book Club, Inc., 316 Ark.195, 200, 871 S.W.2d 389, 392

(1994). While we are mindful that the police actively sought to enlist the aid of Amanda to

get Holly to initiate further contact with them after he had invoked his right to counsel, we

hold that their efforts fell short of making Amanda their agent. Furthermore, this court has

held that an individual is considered an agent of the government only “when it is established

that the private individual acted at the direction of a law enforcement agency or officer.”

Parette v. State, 301 Ark. 607, 611–12, 786 S.W.2d 817, 820 (1990).

       It is not disputed that Amanda encouraged Holly to submit to further interviews and

take a polygraph exam. However, at all times, Amanda was motivated not by a desire to help

the police but to encourage Holly to “clear his name.” While Amanda’s efforts ultimately

resulted in Holly giving incriminating evidence, the police exerted no direct control over

Amanda. At all times, the police made it clear to her that their reason for speaking to Holly


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was that they believed he was guilty. The circuit court found that Amanda’s efforts were

motivated by her own desires and not directed by the police. We hold that this finding was

not clearly against the preponderance of the evidence. Moreover, after Holly’s Denno hearing

the circuit court found that Holly initiated further contact with the police after he had invoked

his right to counsel and that his waivers of counsel in subsequent interviews were made

knowingly and intelligently.

          We note further that Holly’s reliance on Sanchez and Mahnke is misplaced. It is true

that the Eighth Circuit stated in Sanchez that

          “the constraints of the ... Fifth Amendment[ ] do not apply to purely private activity.”
          United States v. Garlock, 19 F.3d 441, 442 (8th Cir.1994). But “the government can
          exercise such control over a private actor that a ‘private’ action can fairly be attributed
          to the government for purposes of the ... Fifth Amendment.” Id. at 443. A defendant
          must demonstrate “that, in light of all the circumstances, [the private individual] acted
          as an instrument or agent of the government.” Id. (internal quotations and citation
          omitted). A defendant satisfies this test “by showing that the government exercised such
          coercive power or such significant encouragement that it is responsible for [the private
          individual’s] conduct, or that the exercised powers are the exclusive prerogative of the
          government.” Id. (internal quotations and citation omitted).

Sanchez, 614 F.3d at 886 (alterations in original). Nonetheless, the Sanchez court reversed a

federal district court’s suppression ruling where Sanchez’s mother brought her son to police

and ordered him to talk to her. While Amanda may have motived Holly to speak with police,

there is no evidence that he was overwhelmed by her desire for him to interact further with

police.     Likewise, in Mahnke, the Massachusetts Supreme Court held that private action by

individuals that induced a confession by a man suspected of killing his girlfriend did not violate

his rights under Miranda. In short, Amanda’s desire that Holly “clear his name” did not

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directly translate into coercion to give a confession without the benefit of legal counsel. We

therefore affirm the circuit court’s denial of Holly’s motion to suppress his custodial statement.

       In compliance with Arkansas Supreme Court Rule 4-3(i), the record has been

examined for all objections, motions, and requests made by either party that were decided

adversely to Holly, and no prejudicial error has been found.

       Affirmed.

       WOOD, J., concurs.

       RHONDA K. WOOD, Justice, concurring. Arkansas Supreme Court Rule 4-3(i)

provides that in cases involving a sentence of death or life imprisonment, that “the Court must

review all errors prejudicial to the appellant.” A complete review of the record reveals the

circuit court had to deal with extraordinary issues during these proceedings and handled them

quite adeptly. While I cannot say that there is an error in the record, the manner in which

defendant’s counsel dealt with the defendant’s mental competency is troubling.

       Defense counsel raised the issue of the defendant’s mental competency early in the case.

The parties agreed to have the defendant placed at the Arkansas State Hospital for a mental

evaluation. On May 29, 2013, the court conducted a mental-status hearing. Defense counsel

informed the court that the State’s evaluation was complete and that the defense had

subsequently hired its own mental evaluator, Dr. Patti Walz. The first mental evaluation is

included in the record and includes a finding that the defendant was competent. On August

30, 2013, the court conducted a second mental-status hearing. Defense counsel informed the


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court that the second evaluation was complete, and a written report was prepared. All parties

agreed that the report would be provided to the State and the circuit court; the report would

also be filed under seal. Yet defense counsel did not actually state that he had a copy or had

even read the report. It is unclear whether at that point he was relying on an oral or a written

report. However, defense counsel announced that his client “is fit to proceed.” The court

accepted that statement and entered an order finding the defendant fit to proceed.

       It is troubling that the second mental evaluation was never filed in the record. Given

that the first evaluation found the defendant fit to proceed and his counsel announced he was

fit to proceed, I cannot find under our Rule 4-3(i) review that it was a prejudicial error for the

court to find the defendant fit to proceed. However, one cannot review what is absent from

the record.

       Adding to the confusion is that the issue was raised again. At a subsequent hearing,

defense counsel stated that he had reviewed both evaluations and did not see an Atkins issue.

See Atkins v. Virginia, 536 U.S. 304 (2002). However, that occurred at the same hearing where

defense counsel was removed for substance-abuse problems. Additionally, at that hearing, his

co-counsel stated the mental-capacity issue “hasn’t been adequately developed.” The record

is largely silent regarding his capacity following that hearing. It is apparent that the circuit court

was extremely concerned and made every allowance to let defense have additional time to

prepare. However, the extent of the defense preparation is unclear from the record.




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       Because the sentence in this case may become irrevocable, it is my hope that any

outstanding issues concerning the defendant’s competency and counsel’s adequacy of

representation on these issues will be fully developed and resolved in Criminal Procedure Rule

37 proceedings.

       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.




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