General Verdict Unanimity Not Required as to Alternative Capital-Murder Theories or “Cruel or Depraved” Subdefinitions in Arkansas Postconviction Review

I. Introduction

In Zachary Holly v. State of Arkansas, 2026 Ark. 61, the Supreme Court of Arkansas affirmed the Benton County Circuit Court’s denial of capital defendant Zachary Holly’s petition for postconviction relief under Arkansas Rule of Criminal Procedure 37. Holly had been convicted of capital murder, rape, kidnapping, and residential burglary stemming from the 2012 abduction, sexual assault, and killing of a six-year-old child whom Holly and his wife had babysat. He received a death sentence for capital murder, plus additional terms for the other offenses.

The appeal raised six ineffective-assistance themes: (1) failure to investigate/present additional childhood sexual-abuse mitigation; (2) failure to investigate/present fetal alcohol spectrum disorder (FASD) mitigation; (3) omission of the statutory mitigator for lack of significant criminal history; (4) an alleged unconstitutional concession of guilt without consent; (5) failure to demand nonmodel verdict forms to secure jury unanimity on a particular capital-murder theory and a particular subdefinition of an aggravator; and (6) cumulative-error prejudice.

II. Summary of the Opinion

The court affirmed across the board, applying the Strickland v. Washington framework and Arkansas’s deferential “clearly erroneous” review of Rule 37 factfinding. It held:

  • No deficient performance or prejudice from not presenting more sexual-abuse evidence where the jury already heard the substance and counsel had strategic reasons to limit it.
  • No deficient performance for not developing an FASD diagnosis where counsel retained multiple mental-health experts, did not unreasonably limit them, and reasonably relied on their assessments.
  • No prejudice from omitting the “lack of significant criminal history” mitigator given the volume of mitigation found and the weight of aggravators.
  • No McCoy v. Louisiana structural error where the record showed no express objection; the case fit Florida v. Nixon and was assessed under Strickland, with the concession deemed strategic given overwhelming evidence.
  • No ineffective assistance for failing to request nonmodel verdict forms: Arkansas law permits a general guilty verdict for a single offense charged by alternative means, and the “especially cruel or depraved” aggravator form adequately stated the law.
  • No cumulative-error relief because Arkansas does not recognize cumulative error in ineffective-assistance claims.

III. Analysis

A. Precedents Cited (and How They Shaped the Decision)

1. Standards of review and Rule 37 posture

  • Roos v. State, 2019 Ark. 360, 588 S.W.3d 738 and Lane v. State, 2019 Ark. 5, 564 S.W.3d 524: supplied the “clearly erroneous” standard and the principle that claims not reasserted on appeal are abandoned.
  • Tornavacca v. State, 2012 Ark. 224, 408 S.W.3d 727: anchored deference to the circuit court’s credibility determinations—critical in the FASD issue where the circuit court credited counsel’s testimony.

2. Ineffective assistance framework

  • Strickland v. Washington, 466 U.S. 668 (1984): the governing two-prong test (deficient performance + prejudice).
  • Woods v. State, 2019 Ark. 62, 567 S.W.3d 494, Smith v. State, 2020 Ark. 410, and Rasul v. State, 2015 Ark. 118, 458 S.W.3d 772: reinforced the objective-reasonableness benchmark, the presumption of competence, and the prejudice definition (“reasonable probability”).
  • Johnson v. State, 2020 Ark. 168, 598 S.W.3d 515 and Reams v. State, 2018 Ark. 324, 560 S.W.3d 441: confirmed that Strickland applies in the capital sentencing phase and framed prejudice as whether additional mitigation would likely change the sentence.

3. Witness selection and “trial strategy” insulation

  • Barefield v. State, 2024 Ark. 141, 696 S.W.3d 822 and Johnson v. State, 2020 Ark. 168, 598 S.W.3d 515: supported treating the decision to call (or not call) lay and expert witnesses as a strategic judgment generally outside Rule 37 second-guessing.

4. Reliance on experts and “no duty to shop”

  • Marcrum v. Luebbers, 509 F.3d 489 (8th Cir. 2007): provided the key principle the court applied to FASD: where counsel retained qualified experts and nothing obvious signaled inadequacy, counsel need not “shop” for a more favorable opinion.

5. Concession of guilt: autonomy vs strategy

  • Florida v. Nixon, 543 U.S. 175 (2004): established that failing to obtain express consent to a guilt concession does not automatically render counsel ineffective; the claim is analyzed under Strickland where the defendant is informed and does not object.
  • McCoy v. Louisiana, 584 U.S. 414 (2018): drew the line for “structural” autonomy error—counsel may not concede guilt over a defendant’s express, persistent objection. The court found Holly’s facts “clearly distinguishable.”

6. Verdict unanimity, alternative means, and model forms

  • Ramos v. United States, 590 U.S. 83 (2020): affirmed the constitutional requirement of unanimity to convict of serious crimes, but the Arkansas court emphasized Ramos does not require unanimity as to the means among alternative theories for a single count.
  • Torres v. State, 2019 Ark. 101, 571 S.W.3d 456 (citing Griffin v. United States, 502 U.S. 46 (1991)): supported upholding general verdicts submitted on alternative factual bases so long as at least one alternative is supported by sufficient evidence.
  • Terry v. State, 371 Ark. 50, 263 S.W.3d 528 (2007): an Arkansas capital-murder example sustaining a general verdict where one charged capital-murder theory was supported.
  • Sheppard v. State, 120 Ark. 160, 179 S.W. 168 (1915): invoked by Holly to argue distinct crimes; the court rejected its applicability because Sheppard addressed variance between charging and conviction, not general verdicts on alternative means.
  • Perry v. State, 2014 Ark. 535, 453 S.W.3d 650, Ortega v. State, 2016 Ark. 372, 501 S.W.3d 824, and Kinsey v. State, 2016 Ark. 393, 503 S.W.3d 772: set the rubric for when nonmodel verdict forms/instructions are warranted and the presumption that model forms are correct.
  • Douglas v. State, 2019 Ark. 57, 567 S.W.3d 483: reinforced that counsel is not deficient for failing to request nonmodel forms when the model correctly states the law.
  • Van Winkle v. State, 2016 Ark. 98, 486 S.W.3d 778: enforced preservation rules; Holly’s structural-error argument on the guilt-phase form was not preserved because it was not raised in the Rule 37 petition.

7. Cumulative error in ineffective assistance

  • Whiteside v. State, 2024 Ark. 30, 684 S.W.3d 588, Howard v. State, 367 Ark. 18, 238 S.W.3d 24 (2006), and Echols v. State, 354 Ark. 530, 127 S.W.3d 486 (2003): reaffirmed Arkansas’s rule rejecting cumulative-error aggregation in Strickland claims, and rejected arguments that Strickland requires such aggregation.

B. Legal Reasoning

1. Sexual-abuse mitigation: “already before the jury” plus strategic limits

The court treated the sexual-abuse issue as primarily a strategic mitigation-presentation dispute. It stressed that evidence of Kenny’s sexual abuse was presented through DHS records, the DHS investigator’s testimony, and Holly’s confession. With that foundation already in the record, the court deemed it reasonable for counsel to avoid confronting Kenny (a valuable mitigation witness) and to decline calling Joey (perceived credibility concerns), as well as to forgo additional expert testimony. The court thus found no Strickland deficiency.

2. FASD mitigation: reasonable investigation through multiple experts

The court’s key move was to define “reasonable investigation” in functional terms: counsel retained three mental-health professionals (including neuropsychologists), did not unreasonably constrain their work, and had no clear pretrial signal that their evaluations were missing FASD. Credibility findings mattered—when conflict existed over what counsel told experts about prenatal exposure, the court deferred to the circuit court’s finding. It then invoked Marcrum v. Luebbers to reject the notion that later-retained experts creating a more favorable diagnosis retroactively renders trial counsel ineffective.

Importantly, the court did not hold that FASD evidence is immaterial in capital sentencing. Rather, it held that counsel’s process—given the information known at the time—fell within the wide range of reasonable professional assistance.

3. Omitted mitigator: no prejudice given the aggravation/mitigation balance actually found

Even though counsel conceded an “oversight” in failing to include the statutory mitigator for lack of significant criminal history (Ark. Code Ann. § 5-4-605(6)), the court treated prejudice as the dispositive issue. The jury found three aggravators beyond a reasonable doubt, accepted a large slate of mitigators (unanimously and non-unanimously), and still returned death. Against that record, adding one more mitigator did not create a reasonable probability of a different sentence.

4. Concession of guilt: McCoy requires express objection; otherwise Nixon/Strickland applies

The court clarified that McCoy v. Louisiana is triggered by the defendant’s express, persistent objection to conceding guilt. Here, Holly had recently attempted to plead guilty to avoid the death penalty, counsel perceived that as permission to concede guilt, and Holly did not object at trial. That factual posture placed the case within Florida v. Nixon, where strategic concession in the face of overwhelming evidence may be reasonable and is reviewed under Strickland rather than treated as structural error.

5. General verdict forms: no requirement of unanimity on the “means” among alternative theories

The opinion’s most concrete doctrinal takeaway concerns verdict architecture in capital cases charged by alternative theories. The court held that neither Arkansas nor U.S. Supreme Court precedent requires jurors to agree on a single theory (e.g., felony murder via rape vs felony murder via kidnapping vs premeditated murder vs child-victim extreme indifference) so long as they unanimously find guilt of the single offense of capital murder beyond a reasonable doubt. Relying on Torres v. State, Griffin v. United States, and Terry v. State, the court treated the alternatives as permissible “means” supporting a general verdict, and it upheld use of the model form (AMI Crim. 2d 8301-VF).

The same logic carried into the penalty phase: the “especially cruel or depraved” aggravator’s statutory definitions (and subdefinitions) did not require a separate, itemized unanimity finding on a particular subdefinition, absent authority that the model form misstated the law.

6. Cumulative error: categorically unavailable in Arkansas Strickland litigation

The court reaffirmed—without modification—that Arkansas does not aggregate multiple alleged deficiencies into cumulative-error prejudice for ineffective-assistance claims. This preserves a claim-by-claim Strickland analysis and forecloses relief where no single allegation independently satisfies Strickland.

C. Impact

  • Verdict-form litigation in capital cases: The decision strengthens the State’s position that model general verdict forms remain sufficient when capital murder is submitted on multiple statutory theories, and that aggravator forms tracking the statute need not require juror agreement on subdefinitions. Future Rule 37 petitioners challenging general verdict forms will face the presumption of correctness for model forms plus the “alternative means” line of cases.
  • McCoy claims in Arkansas postconviction practice: The opinion signals that defendants must show an express objection to counsel’s guilt concession to obtain McCoy structural-error treatment; otherwise, courts will likely evaluate concessions as strategic decisions under Nixon/Strickland.
  • Neurodevelopmental mitigation (FASD) and counsel’s duty: The court’s reasoning emphasizes process over results: retaining qualified experts and reasonably relying on them can defeat IAC claims even if later experts diagnose serious disorders. Petitioners will need to show that counsel ignored clear indicators or had reason to doubt expert adequacy.
  • Mitigation “quantity” vs “quality” and prejudice: The denial on the omitted mitigator underscores that, where jurors found extensive mitigation yet imposed death, courts may be reluctant to find prejudice from incremental additions unless the new evidence is qualitatively transformative (e.g., fundamentally alters culpability narrative).

IV. Complex Concepts Simplified

  • Rule 37 postconviction relief: A collateral proceeding (after direct appeal) where the defendant can challenge the conviction/sentence on limited grounds, commonly ineffective assistance of counsel. It is not a do-over of the trial; the petitioner must meet strict standards.
  • “Clearly erroneous” review: The appellate court does not re-try the case; it reverses only when left with a firm conviction the lower court made a mistake, especially deferring to the lower court on witness credibility.
  • Strickland’s two prongs: (1) Performance—counsel acted unreasonably under professional norms; (2) Prejudice—there is a reasonable probability the outcome would have changed. Failing either prong defeats the claim.
  • Structural error vs Strickland prejudice: Some constitutional errors (like the autonomy violation in McCoy) require automatic reversal without proving prejudice. Most attorney-performance claims are not structural and require Strickland prejudice.
  • Alternative means and general verdicts: A statute can define one crime that can be committed in different ways. A “general verdict” can be valid if jurors unanimously agree the defendant committed the crime, even if they differ on the particular way—unless the law requires unanimity on the specific alternative.
  • Aggravating vs mitigating circumstances: In death-penalty sentencing, aggravators increase the case for death; mitigators reduce moral blameworthiness or support mercy. Jurors weigh them under statutory rules.

V. Conclusion

Holly is a reaffirmation opinion with practical force in capital postconviction litigation. It (1) constrains McCoy-based autonomy arguments to cases of express objection, (2) validates reliance on multiple pretrial expert evaluations against later-developed neurodevelopmental theories like FASD, (3) treats incremental mitigation additions as insufficient absent a clear probability of a different sentence, and (4) solidifies Arkansas’s acceptance of model general verdict forms where a single count is submitted on alternative theories—both at guilt and in aggravator findings—absent authority that the model form misstates the law.