Opposition Brief — Zachary Holly, Petitioner v. Arkansas

NO. 17-6514

____________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

____________________________________________________

ZACHARY D. HOLLY,

Petitioner

v.

STATE OF ARKANSAS,

Respondent

____________________________________________________

On Petition for Writ of Certiorari to the

Supreme Court of Arkansas

____________________________________________________

RESPONDENT’S BRIEF IN OPPOSITION

____________________________________________________

LESLIE RUTLEDGE

Attorney General

DAVID R. RAUPP

Senior Assistant Attorney General

LEE RUDOFSKY

Solicitor General

PAMELA BROOKE GASAWAY*

Assistant Attorney General

DYLAN JACOBS

Assistant Solicitor General

OFFICE OF THE ARKANSAS

ATTORNEY GENERAL

323 Center Street, Suite 200

Little Rock, Arkansas 72201

(501) 682-2007 (main number)

brooke.gasaway@arkansasag.gov

ATTORNEYS FOR RESPONDENT

*Counsel of Record

QUESTION PRESENTED

Whether a capital defendant’s last-minute proffer to plead guilty in exchange for

life imprisonment is relevant mitigation evidence under Lockett v. Ohio, 438 U.S.

586 (1978)?

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TABLE OF CONTENTS

PAGE

QUESTION PRESENTED ................................................................................... i

TABLE OF CONTENTS ..................................................................................... ii

TABLE OF AUTHORITIES ...............................................................................iii

OPINION BELOW .............................................................................................. 1

JURISDICTION .................................................................................................. 1

CONSTITUTIONAL PROVISIONS INVOLVED .............................................. 1

STATEMENT OF THE CASE ............................................................................ 1

REASONS FOR DENYING THE WRIT ............................................................ 4

I.

The Arkansas Supreme Court’s conclusion that Petitioner’s

conditional offer to plead guilty was not relevant mitigation

evidence is consistent with the Eighth and Fourteenth

Amendments and this Court’s precedent ...................................... 4

II.

The consensus among federal courts of appeal and state courts of

last resort is that a defendant’s conditional plea offer is not relevant

mitigation evidence. ....................................................................... 7

III.

Even assuming arguendo that Petitioner’s conditional proffer to

plead guilty was relevant mitigation evidence, any error was

harmless beyond a reasonable doubt. ......................................... 10

CONCLUSION .................................................................................................. 12

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TABLE OF AUTHORITIES

CASES

PAGE

Busso-Estopellan v. Mroz, 364 P.3d 472 (Ariz. 2015).............................................. 8

Chapman v. California, 386 U.S. 18 (1967) .......................................................... 10

Eddings v. Oklahoma, 455 U.S. 104 (1982)............................................................. 5

Hitchcock v. Dugger, 481 U.S. 393 (1987) ............................................................. 10

Hitchcock v. Sec’y, Fla. Dep’t of Corr., 745 F.3d 476 (11th Cir. 2014) .................... 8

Holly v. Arkansas, 520 S.W.3d 677 (Ark. 2017) .............................................. 4, 5, 7

Howard v. State, 238 S.W.3d 24 (Ark. 2006) ........................................................... 2

Jenkins v. State, 493 S.W.3d 583 (Tex. Crim. App. 2016) ...................................... 9

Johnson v. United States, 860 F.Supp.2d 663 (N.D. Iowa 2012) ............................ 8

Lockett v. Ohio, 438 U.S. 586 (1978) .............................................................. passim

Mobley v. State, 455 S.E.2d 61 (Ga. 1995), cert. denied 516 U.S. 942 (1995)......... 9

Owens v. Guida, 549 F.3d 399 (6th Cir. 2008) ........................................................ 8

Payne v. Tennessee, 501 U.S. 808 (1991) ................................................................. 4

People v. Wall, 404 P.3d 1209 (Cal. 2017) ............................................................... 7

Skipper v. South Carolina, 476 U.S. 1 (1986) ................................................... 5, 10

State v. Dixon, 805 N.E.2d 1042 (Ohio 2004) .......................................................... 8

State v. Sowell, 71 N.E.3d 1034 (Ohio 2016),

cert. denied, 138 S. Ct. 101 (2017) ....................................................................... 7

United States v. Caro, 597 F.3d 608 (4th Cir. 2010) ............................................... 7

United States v. Fell, 372 F.Supp.2d 773 (D. Vt. 2005) .......................................... 9

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United States v. Fell, 531 F.3d 197 (2d Cir. 2008) .................................................. 9

Wright v. Bell, 619 F.3d 586 (6th Cir. 2010) ........................................................... 8

STATUTES AND RULES

28 U.S.C. § 1257(a) ................................................................................................... 1

Ark. R. Crim. P. 25.4 ................................................................................................ 2

CONSTITUTIONAL PROVISIONS

United States Constitution, Amendment 8 ............................................................. 1

United States Constitution, Amendment 14 ........................................................... 1

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OPINION BELOW

The Arkansas Supreme Court opinion (Pet. App. at 1-23) is published at

2017 Ark. 201, 520 S.W.3d 677.

JURISDICTION

The Arkansas Supreme Court opinion was delivered on June 1, 2017. The

petition for writ of certiorari was filed on September 29, 2017. This Court has

discretionary jurisdiction under 28 U.S.C. § 1257(a).

CONSTITUTIONAL PROVISIONS INVOLVED

The Eighth Amendment to the United States Constitution prohibits, in

pertinent part, the infliction of “cruel and unusual punishments[.]”

Section 1 of the Fourteenth Amendment to the United States Constitution

provides, in pertinent part, that no State shall “deprive any person of life,

liberty, or property, without due process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.”

STATEMENT OF THE CASE

In the middle of the night on November 20, 2012, Petitioner entered his

neighbor’s house and kidnapped her six-year-old daughter, J.B. (Pet. App. at 2).

Petitioner carried J.B. to a nearby vacant house where he laid her on the ground,

stripped her, and vaginally raped her. Id. Petitioner then sat on J.B.’s chest,

pinning her arms to her side, and wrapped her pajama pants around her neck

and tied a knot. Id. Petitioner tightened the pants around J.B.’s neck until she

stopped kicking and stopped gasping for air. Id. After straggling J.B. to death,

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Petitioner dragged her lifeless body by her hair and pajama pants and dumped

her in a closet in the vacant house. (R. 1093-94).

Over the next three days, police interviewed Petitioner several times. On

November 23, 2012, Petitioner confessed to kidnapping, raping, and murdering

J.B. (R. 1074-96). Petitioner was arrested, and the State charged him with

residential burglary, kidnapping, rape, and capital murder. (Pet. App. at 1).

The State sought the death penalty. Id.

After the case had been pending for over two and a half years, and five days

before trial, Petitioner filed a proffer to plead guilty in exchange for a sentence of

life imprisonment. (Pet. App. at 6, 24). The State rejected Petitioner’s offer and

filed a motion in limine to prohibit Petitioner from introducing his proffered

guilty plea as mitigation evidence during sentencing. (Pet. App. at 6). After a

hearing, the state circuit court granted the State’s motion in limine and stated

that Petitioner’s proffered guilty plea was “not admissible” under Arkansas Rule

of Criminal Procedure 25.4 and Howard v. State, 238 S.W.3d 24 (Ark. 2006).

(Pet. App. at 6). When pressed for a ruling on Petitioner’s claim that the proffer

to plead guilty was relevant mitigation evidence, the state circuit court found

that the relevancy issue was moot. Id.

During opening statements, Petitioner’s counsel informed the jury that he

would not be “disput[ing] much of the State’s case in [the] first phase of the

trial.” (R. 1890). Counsel further “acknowledge[d]” that Petitioner “entered the

house of [J.B.],” “removed her from her home,” “had sexual contact with her,”

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and “caused her death.” (R. 1890). Counsel stated that Petitioner “accepted

responsibility” for J.B.’s death and that he “must be held responsible for what he

did.” (R. 1891-92).

The jury convicted Petitioner of capital murder, kidnapping, rape, and

residential burglary. (Pet. App. at 1). During the penalty phase, Petitioner put

forth extensive mitigation evidence. Petitioner listed 47 potential mitigating

circumstances on Form 2 for the jury to consider in sentencing him. (R. 530-38).

Of those 47 potential mitigating circumstances, the jury unanimously found that

30 circumstances “probably exist[ed],” including that Petitioner confessed to the

crimes for which he was convicted and that he was raised in an abusive and

drug-fueled environment. Id. At least one, but not all jurors, found that nine

circumstances “probably exist[ed].” Id. Also, at least one member of the jury,

but not all, found an additional mitigation circumstance which “probably

exist[ed]” but was not listed on Form 2. Id.

After hearing the evidence in the penalty phase, the jury sentenced

Petitioner to death for capital murder, two life sentences for rape and

kidnapping, and 20 years’ imprisonment for residential burglary. (Pet. App. at

1). On direct appeal, the Arkansas Supreme Court concluded that Petitioner’s

last-minute offer to plead guilty in exchange for life imprisonment was

irrelevant mitigation evidence. Id.

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REASONS FOR DENYING THE WRIT

I.

The Arkansas Supreme Court’s conclusion that Petitioner’s conditional

offer to plead guilty was not relevant mitigation evidence is consistent

with the Eighth and Fourteenth Amendments and this Court’s precedent.

The Arkansas Supreme Court correctly held that this Court’s decision in

Lockett v. Ohio, 438 U.S. 586 (1978), did not entitle Petitioner to introduce

irrelevant evidence of his conditional guilty plea as mitigation evidence during

the penalty phase of his capital case. Indeed, as the Arkansas Supreme Court

reasoned, Petitioner’s proffer “tended to show that [he] was avoiding full

responsibility for his crime [and] therefore [it was] not relevant.” Holly v.

Arkansas, 520 S.W.3d 677, 684 (Ark. 2017). Further review here is therefore not

warranted.

In capital cases, the Eighth and Fourteenth Amendments require

“individualized consideration of mitigating factors.” Lockett, 438 U.S. at 606.

Under that standard, a capital defendant is entitled to introduce relevant

evidence of “any aspect of the defendant’s character or record and any of the

circumstances of the offense” to demonstrate that a sentence less than death

ought to be imposed. Id. at 604. The focus of such mitigating evidence is on the

defendant and on the crime. See id. Lockett, and its progeny, clearly stand for

the proposition that courts may not exclude relevant evidence about the

defendant and his offense. See Payne v. Tennessee, 501 U.S. 808, 822 (1991)

(stating that “a State cannot preclude the sentencer from considering ‘any

relevant mitigating evidence’ that the defendant proffers in support of a

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sentence less than death” (quoting Eddings v. Oklahoma, 455 U.S. 104, 114

(1982))).

Those cases and others also clearly establish that in determining whether

to impose the death penalty, juries are not required to consider evidence that

has nothing to do with the defendant or the offense. See Lockett, 438 U.S. at 605

n.12. Indeed, even in capital cases, trial courts still retain the “traditional

authority [] to exclude, as irrelevant, evidence not bearing on the defendant’s

character, prior record, or the circumstances of his offense.” Id.; see also,

Skipper v. South Carolina, 476 U.S. 1, 7 n.2 (1986) (noting that some evidence is

“irrelevant to the sentencing determination”).

Contrary to Petitioner’s assertion, he did not seek to introduce that kind

of evidence. Rather, he sought to introduce evidence having no bearing on his

character. The state circuit court used its “traditional authority” as an

evidentiary gatekeeper to exclude such evidence that lacked even minimal

relevance to Petitioner’s character. Lockett, 438 U.S. at 605 n.12. Petitioner’s

plea offer, instead, demonstrated that, once faced with the overwhelming

evidence of his guilt, he sought a last-ditch effort to avoid the death penalty. His

proffer did not show that he desired to accept full responsibility for kidnapping,

raping, and murdering six-year-old J.B. As the Arkansas Supreme Court noted,

at the time of Petitioner’s proffer, “full responsibility for his crime carried with it

the death penalty” and not the mandatory minimum of life imprisonment which

Petitioner sought. Holly, 520 S.W.3d at 684.

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Moreover, the facts surrounding Petitioner’s proffer to plead guilty

demonstrate his interest in avoiding death, and not an interest in accepting

responsibility. First, Petitioner did not make the proffer until five days before

trial. The case had been pending over two and a half years before Petitioner’s

half-hearted attempt to plead guilty. Second, the plea offer itself lacked

sufficient factual detail to show the full depravity of his crimes and to show a

genuine acceptance of responsibility. In fact, the proffer merely stated that he

was willing to “change [his] plea from not guilty to guilty” in exchange for life

imprisonment. (Pet. App. at 24). Third, the offer was contingent upon the State

agreeing to sentence Petitioner to the minimum punishment available for capital

murder in Arkansas—life without the possibility of parole. Petitioner’s

conditional proffer on the eve of trial was not relevant to his character under

Lockett as it showed solely an acknowledgment that the evidence against him

was overwhelming and that he feared being put to death.

Petitioner’s contrary reading of Lockett and its progeny would virtually

eliminate the relevancy requirement and allow capital defendants to introduce

any and all evidence during the penalty phase at trial. The nature of

Petitioner’s proffered guilty plea is not the type of evidence covered by Lockett

because such evidence did not relate to his “character or record [or] any of the

circumstances of the offense.” Lockett, 438 U.S. at 604.

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Thus, as the Arkansas Supreme Court correctly concluded, Petitioner’s

last-minute proffer to plead guilty in exchange for life imprisonment had no

bearing on his character and was not relevant evidence of mitigation.

II.

The consensus among federal courts of appeal and state courts of last

resort is that a defendant’s conditional plea offer is not relevant

mitigation evidence.

Few federal courts of appeal or state courts of last resort have ever

directly decided the question of whether a defendant’s proffer to plead guilty in

exchange for life imprisonment was relevant mitigation evidence in the penalty

phase of a capital case. In fact, only Arkansas, Arizona, California, Ohio (twice),

and the United States Court of Appeals for the Fourth Circuit have answered

the question.

The consensus among those courts, contrary to Petitioner’s assertion, is

that such a proffer is irrelevant. See United States v. Caro, 597 F.3d 608, 635

(4th Cir. 2010) (holding that Caro’s conditional plea offer did not “show[]

acceptance of responsibility” and the district court did not “abuse[] its discretion

or violate[] due process by excluding it as irrelevant”); People v. Wall, 404 P.3d

1209, 1225 (Cal. 2017) (holding that the “exclusion of evidence of Wall’s

[conditional] plea offer did not violate his constitutional right to present

mitigating evidence”); Holly, 520 S.W.3d at 684 (concluding that Petitioner’s

“offer to plead with the stated condition was not relevant mitigating evidence as

it did not support the purpose [of showing acceptance of responsibility] for which

it was offered”); State v. Sowell, 71 N.E.3d 1034, 1064 (Ohio 2016), cert. denied,

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138 S. Ct. 101 (2017)1 (reaffirming the holding in State v. Dixon, 805 N.E.2d

1042 (Ohio 2004), that “a defendant’s offer to plead guilty, never accepted by the

prosecutor, is not relevant to the issue of whether the defendant should be

sentenced to death”).2

The Arizona Supreme Court decided the case in a contrary manner and is

the only state court of last resort to do so. See Busso-Estopellan v. Mroz, 364

P.3d 472, 473 (Ariz. 2015) (holding that Busso-Estopellan’s conditional “pretrial

offer to plead guilty [was] relevant because it tend[ed] to make his acceptance of

responsibility for the murders more probable”). No federal court of appeals has

endorsed its reasoning.

Petitioner seeks to exaggerate this minor split of authority by including in

his petition a number of lower court decisions, many of them inapposite. For

example, the district court in Johnson v. United States did not have a Lockett

claim properly before it and merely held that Johnson’s attorney should have

attempted to introduce her offers to plead guilty as mitigating evidence because

there was a colorable argument for its introduction and there was no controlling

1 In fact, this Court denied Sowell’s petition for writ of certiorari on the exact same question

presented here.

2 Federal courts of appeal have broadly found evidence of unsuccessful plea negotiations to be

inadmissible under Lockett. See Hitchcock v. Sec’y, Fla. Dep’t of Corr., 745 F.3d 476, 483 (11th

Cir. 2014) (“[e]vidence of a rejected plea offer for a lesser sentence . . . is not a mitigating

circumstance because it sheds no light on a defendant’s character, background, or the

circumstances of the crime”); Wright v. Bell, 619 F.3d 586, 599 (6th Cir. 2010) (“[b]ecause the

alleged offer of a life sentence in exchange for a guilty plea did not bear on the defendant’s

character, prior record, or the circumstances of the offense, Wright was not constitutionally

entitled to present evidence of the failed plea negotiations”); Owens v. Guida, 549 F.3d 399 (6th

Cir. 2008) (noting the broad agreement among courts).

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contrary authority in the Eighth Circuit. 860 F.Supp.2d 663, 901, 903 (N.D.

Iowa 2012).

In United States v. Fell, the district court permitted Fell to introduce a

stipulation informing the jury that he had offered to plead guilty in exchange for

a life sentence without parole. 372 F.Supp.2d 773, 784 (D. Vt. 2005). While

Petitioner notes that this ruling was “not disturb[ed]” by the Second Circuit, see

Pet. Arg. at 7, he neglects to mention that this was because the Second Circuit

never considered the issue because it was not raised by the government on

appeal. U.S. v. Fell, 531 F.3d 197 (2d Cir. 2008).

The remaining cases do not help Petitioner because they did not address

the constitutional issue under Lockett, instead determining that proffers such as

Petitioner’s are irrelevant under the rules of evidence. See Jenkins v. State, 493

S.W.3d 583, 609 (Tex. Crim. App. 2016); Mobley v. State, 455 S.E.2d 61, 70 (Ga.

1995), cert. denied 516 U.S. 942 (1995). In any case, these courts followed the

overwhelming consensus in excluding such proffers.

A single outlier case is insufficient to create a cert-worthy conflict as

Petitioner attempts, and fails, to demonstrate. Nevertheless, consistent with the

majority of those cases, the Arkansas Supreme Court held that Petitioner’s

proffer was irrelevant. There is no serious split of authority requiring this

Court’s intervention, and further review is not warranted.

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III.

Even assuming arguendo that Petitioner’s conditional proffer to plead

guilty was relevant mitigation evidence, any error was harmless beyond a

reasonable doubt.

This Court should not waste its limited resources in intervening to resolve

such a minor conflict where the decision would have no realistic effect on the

outcome of the case. This Court can confidently conclude that the exclusion of

Petitioner’s proffer was harmless beyond a reasonable doubt. A federal

constitutional error is harmless if this Court finds “beyond a reasonable doubt

that the error complained of did not contribute to the verdict obtained.”

Chapman v. California, 386 U.S. 18, 24 (1967). If a state trial court excluded

relevant mitigation evidence from the jury in a capital penalty phase, the error

“renders the death sentence invalid” unless the state proves the error to be

harmless. Hitchcock v. Dugger, 481 U.S. 393, 399 (1987); see also Skipper, 476

U.S. at 8 (stating that it was “implausible” that the excluded evidence was

“harmless” as “it appear[d] reasonably likely that the exclusion of evidence . . .

may have affected the jury’s decision to impose the death sentence”).

It is beyond doubt that Petitioner’s proffer, had it been considered, would

not have persuaded the jury to recommend a life sentence. One additional

mitigation circumstance, which is negligibly mitigating at best, would have

made no difference in the jury’s decision to impose the death penalty. At

sentencing, the jury unanimously determined beyond a reasonable doubt that

three aggravating circumstances existed. That the capital murder was

committed: (1) to prevent arrest or effect an escape, (2) in an especially cruel or

10

depraved manner, and (3) against a victim who was especially vulnerable

because she was under the age of 12. (R. 529). The jury, also, heard evidence,

and unanimously found, that 30 mitigating circumstances probably existed,

including that Petitioner confessed to the crimes for which he was convicted. (R.

530-38). Additionally, the jury unanimously found that Petitioner was verbally

and physically abused by multiple people growing up, raised in an unstable and

drug-fueled environment, and was forced to beg for food as a child. (R. 530-38).

Furthermore, Petitioner’s counsel made it known from the beginning of

trial that Petitioner had already confessed to the crimes and “accepted

responsibility” for murdering J.B. (R. 1890-92). Presenting a bare plea offer

would have been merely cumulative as the jury learned that Petitioner “accepted

responsibility” for, and confessed to, murdering J.B.

Given the specific facts of this crime—that Petitioner kidnapped, raped,

and strangled a six-year-old girl whom he babysat—and the compelling

aggravating evidence, the exclusion of his last-minute conditional proffer to

plead guilty was harmless beyond a reasonable doubt.

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CONCLUSION

For the foregoing reasons, the petition for a writ of certiorari should be

denied.

Respectfully submitted,

LESLIE RUTLEDGE

Attorney General

BY:

LEE RUDOFSKY

Solicitor General

DYLAN JACOBS

Assistant Solicitor General

DAVID R. RAUPP

Senior Assistant Attorney General

____________________________

PAMELA BROOKE GASAWAY*

Assistant Attorney General

OFFICE OF THE ARKANSAS

ATTORNEY GENERAL

323 Center Street, Suite 200

Little Rock, Arkansas 72201

(501) 682-2007 (main number)

brooke.gasaway@arkansasag.gov

ATTORNEYS FOR RESPONDENT

*Counsel of Record

January 26, 2018

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