Background
In November 2021, Nakii Holloway and his brother Naim drove to a Little Rock intersection where Nakii fired multiple shots into a car driven by Sade Turner, who was twelve weeks pregnant. Turner and her unborn child died at the scene. The brothers then returned home; a badly burned red Jeep Liberty was later recovered by law enforcement.
About two minutes after the shooting, a call was placed from Naim Holloway’s phone to Xavier Johnson. Johnson’s cousin, Mykell McFee, was present and overheard the conversation on speakerphone. McFee later described that call—in which the caller said the shooting was “a free score” and that he was about to burn a truck—to detectives during a recorded interview conducted in connection with Johnson’s subsequent murder investigation. Johnson himself was later killed and was unavailable to testify at trial.
At the joint trial of Nakii and Naim Holloway in Pulaski County Circuit Court, McFee took the stand but claimed he could not remember the statements he had made during his recorded interview, even after the prosecutor attempted to refresh his recollection with a transcript. McFee, who was incarcerated, admitted he did not want to be seen as a “snitch.” The State sought to play the recorded interview for the jury. Nakii objected on Confrontation Clause grounds, arguing that McFee’s claimed memory loss rendered him effectively unavailable for cross-examination. The circuit court overruled the objection and admitted the recording. Nakii was convicted of two counts of capital murder and three counts of terroristic threatening with firearm enhancements.
The Court’s Holding
The Arkansas Supreme Court affirmed the conviction on the sole ground that Nakii’s Confrontation Clause argument was not preserved for appellate review. At trial, Nakii’s objection focused exclusively on his inability to effectively cross-examine McFee—the witness present in court who claimed a faulty memory. On appeal, Nakii shifted to a distinct argument: that the recording also captured statements made by Xavier Johnson, who was deceased and therefore unavailable for cross-examination at all. The court held this was a different objection involving a different witness, and thus a different issue than the one raised below.
The court reiterated the established Arkansas rule that an objection must be made at the first opportunity and must be specific enough to apprise the circuit court of the particular error alleged. Because Nakii never identified Johnson’s unavailability for confrontation as the basis for his objection—even when the circuit court expressly invited counsel to clarify all objections to avoid waiver—the issue was never ruled upon below and could not be considered on appeal.
Key Takeaways
- A Confrontation Clause objection must be specific enough to identify the particular witness and theory at issue; a general Sixth Amendment objection aimed at one witness does not preserve a distinct confrontation argument regarding a different, unavailable witness whose out-of-court statements appear in the same recording.
- When a circuit court affirmatively invites defense counsel to identify all objections and clarify the record, that moment represents the opportunity to raise—and preserve—any additional confrontation arguments; failing to do so results in waiver.
- Special Justice Cody Kees concurred separately, arguing the objection was sufficient to reach the merits and that, on the merits, Johnson’s casual remark during a private phone call was nontestimonial under Crawford v. Washington and Davis v. Washington, placing it outside the Confrontation Clause’s protection altogether.
Why It Matters
The decision is a practical reminder for criminal defense attorneys that a Confrontation Clause objection is not a catch-all. Where a recording or statement contains layers of hearsay from multiple sources, counsel must separately identify each declarant whose statements raise confrontation concerns—and must do so at trial. A single, broadly framed objection keyed to one witness will not preserve a distinct challenge to another witness’s embedded statements.
The concurrence adds doctrinal interest: it signals that at least one member of the court would hold that spontaneous, casual statements made during a private phone call—with no purpose of generating prosecutorial evidence—fall outside the Confrontation Clause as nontestimonial under the framework established in Crawford and Davis, even when those statements are later introduced against a defendant at trial.