Timothy Wayne Kemp v. State of Arkansas
Annotate this Case
Timothy Wayne KEMP v. STATE of Arkansas
CR 95-549 ___ S.W.2d ___
Supreme Court of Arkansas
Opinion delivered April 22, 1996
1. Evidence -- challenge to sufficiency of -- factors on review.
-- The test for determining the sufficiency of the evidence is
whether there is substantial evidence to support the jury's
verdict; substantial evidence is that which is forceful enough
to compel a conclusion one way or another and which goes
beyond mere speculation or conjecture; the court reviews the
evidence in the light most favorable to the appellee and
considers only that evidence which supports the verdict;
intent to commit murder may be inferred from the type of
weapon used, and the nature, extent, and location of the
wounds.
2. Evidence -- challenge to sufficiency of -- evidence was
sufficient to show killings were premeditated and deliberated
acts. -- Upon considering the doctor's testimony regarding the
nature, extent, and location of the victim's wounds, the jury
could have easily inferred that appellant fired the shots into
the victims in a premeditated and deliberated manner; also
significant was testimony that appellant admitted to killing
three of the victims because he was angry at them for running
him off and not letting his girlfriend leave with him, and a
fourth because he was "at the wrong place at the wrong time";
in light of this evidence, the appellee's proof was sufficient
that the appellant's killings of the four victims were
premeditated and deliberate acts.
3. Jurisdiction -- territorial jurisdiction of lower courts in
criminal trials discussed -- circuit courts limited to trying
accusations of crimes which occurred in their counties or
judicial districts. -- If the allegation of a charging
instrument were that an offense occurred outside the
territorial jurisdiction of the court, then a judgment
rendered by the court would be void; a criminal trial must be
held in the county in which the crime was committed, provided
that venue may be changed, at the request of the accused, to
another county in the judicial district in which the
"indictment is found"; a circuit court is limited to trying a
criminal case in the county in which the crime was committed
unless the accused requests the trial be moved to another
county which, in any case, must be a part of the judicial
district served by the court; circuit courts are thus limited
to trying accusations of crimes which occurred in the
counties, or judicial districts, in which they sit.
4. Jurisdiction -- appellant's argument without merit -- no
constitutional or legislative division of judicial district. -
- Appellant's argument that the circuit judge was without
territorial jurisdiction to hear the case was meritless; the
electoral subdistricts contemplated in the Hunt Consent Decree
were not judicial districts under Arkansas's Constitution and
statutes; the Consent Decree clearly stated that the lines of
existing judicial districts would not be disturbed except to
the extent that electoral subdistricts were created; here
there was no constitutional or legislative provision that
divided the judicial district into two judicial districts and
there was nothing in the plain language of Ark. Const. art. 7,
17, that effected such a division.
5. Jurisdiction -- reliance on case misplaced -- electorial
subdistricts not intended to be self-contained judicial
districts. -- Appellant's reliance on Riviere v. Hardegree,
278 Ark. 167, 644 S.W.2d (1983) was misplaced; that case was
clearly distinguishable in that it involved statutory
interpretation of an act of the General Assembly; there has
been no effort by the General Assembly to convert the
electoral subdistricts created in Hunt into entirely separate
and self-contained judicial districts with all the attendant
ramifications.
6. Constitutional law -- Sixth Amendment rights not violated --
judicial districts remained intact. -- Appellant's argument
that his Sixth Amendment rights were violated by his
prosecution in the First Division of Pulaski County Circuit
Court was meritless; the new subdistricts were not perceived
as having been created for reasons other than for the
elections of minority judges; the judicial districts remained
intact under state law and the state's judicial districts are
the districts referenced in the Sixth Amendment as opposed to
the electoral subdistricts established in the Hunt Consent
Decree.
7. Jury -- proffered instruction omitted some of applicable law -
- instruction properly refused. -- Where appellant's proposed
jury instruction did not correctly state the law, the trial
court did not err in refusing to give it.
8. Jury -- jury instruction refused -- trial court's refusal to
proffer instruction did not violate appellant's due process
rights. -- Appellant's assertion that his federal and state
due process rights were violated as a result of the trial
court's refusal to give his proffered "imperfect self-defense"
instruction was meritless; the trial court's refusal to give
appellant's requested instruction did not eliminate appellee's
burden to prove premeditated and deliberated murder beyond a
reasonable doubt and the jury was instructed in this respect,
and was also instructed on the lesser-included offenses of
first-degree murder, second-degree murder, and manslaughter;
the evidence relating to the element of premeditated and
deliberated murder was for the jury to weigh and evaluate in
light of the appellee's burden to prove that intent beyond a
reasonable doubt; as it was clear that this burden remained
with the appellee, the trial court's refusal to give
appellant's proffered instruction did not violate his due
process rights.
9. Jury -- standard for excusal of juror for cause -- when claim
of error is preserved -- trial court's ruling not disturbed
absent abuse of discretion. -- The standard for determining if
a prospective juror should be excused for cause is whether the
juror's views about the death penalty would prevent, or
substantially impair, the performance of the juror's duties in
accordance with the instructions and the oath taken; a claim
of error relating to a challenge for cause is only preserved
regarding jurors who actually sat on the jury after a
challenge for cause was denied; in Arkansas, it is presumed
that persons comprising the venire are unbiased and qualified
to serve, it is appellant's burden to prove otherwise; a trial
court's ruling on this issue will not be disturbed absent an
abuse of discretion.
10. Jury -- juror fit to serve -- appellant's argument rejected. -
- Upon examining the juror's remarks, the supreme court agreed
that her answers did not render her unfit to serve on the
jury; appellant's argument that the juror should have been
excused for cause was rejected.
11. Criminal law -- capital murder statute not unconstitutionally
vague. -- Appellant's argument that the capital murder statute
was unconstitutionally vague in violation of the Eighth and
Fourteenth Amendments because it provided no meaningful
distinction between "premeditation and deliberation" and the
definition of "purpose" in the first-degree murder statute had
been previously made and rejected.
12. Mistrial -- mistrial discussed -- trial court has wide
discretion in granting or denying -- attorneys given leeway in
closing remarks. -- A mistrial is a drastic remedy to which
the court should resort only when there has been an error so
prejudicial that justice cannot be served by continuing the
trial, it should only be ordered when the fundamental fairness
of the trial itself has been manifestly affected; the trial
court has wide discretion in granting or denying a motion for
a mistrial and its discretion will not be disturbed except
where there is an abuse of discretion or manifest prejudice to
the complaining party, an admonition to the jury usually cures
a prejudicial statement unless it is so patently inflammatory
that justice could not be served by continuing the trial;
attorneys are given leeway in closing remarks.
13. Mistrial -- prosecutor's statement not of such magnitude to
require mistrial -- admonition to jury cured any prejudice. --
Where the prosecutor's statement was not of such magnitude to
require a mistrial, and, the trial court instructed the jury
that closing arguments were not evidence, the admonition cured
any prejudice.
14. Criminal law -- mental capacity of accused to waive
constitutional rights question of fact for trial court --
intoxication alone will not invalidate statement. -- Whether
an accused had sufficient mental capacity to waive his
constitutional rights, or was too incapacitated due to drugs
or alcohol to make an intelligent waiver is a question of fact
for the trial court to resolve; the fact that the accused
might have been intoxicated at the time of his statement,
alone, will not invalidate that statement, but will only go to
the weight accorded it.
15. Criminal law -- appellant's argument meritless -- trial court
resolved issue against him. -- Appellant's argument that since
he had consumed at least a case of beer in the eight to twelve
hours prior to offering his statement, he was so intoxicated
that he did not knowingly, intelligently, and voluntarily
waive his rights under the Fifth Amendment to the United
States Constitution and Ark. Const. art. 2, 8, was
meritless; the trial court had the duty to determine if
appellant had sufficient mental capacity and did so.
16. Appeal & error -- no authority cited for argument -- no
prejudice found. -- Appellant's argument that the trial court
erred in refusing to enjoin the prosecutor from claiming to
represent "The People," as Arkansas has specifically rejected
this formulation and prosecutions are made in name of the
State, was meritless; appellant cited no authority nor did he
make a convincing argument in support of his assertion of
error; moreover, no prejudice was found in the trial court's
failure so to enjoin the prosecutor; the court will not
reverse in the absence of prejudice.
17. Motions -- motion to quash properly denied -- no prejudice
shown. -- Where, prior to individual voir dire, the
prospective jurors were asked some questions as a group and
one prospective juror stated that his wife worked with someone
who was related to one of the witnesses, particularly, "the
girl that was hid in the closet," appellant's motion to quash
the panel on the grounds that this statement was prejudicial
was properly denied; at trial a witness testified that she hid
in a closet in the trailer during the shootings; the appellant
could not show he was prejudiced by the trial court's ruling.
18. Mistrial -- trial court's denial of proffered instructions
proper -- leeway given to both sides during closing arguments.
-- The trial court's denial of appellant's motion for
mistrial, which was based on a remark made by the prosecutor
during closing arguments was not error; appellant argued that
the prosecutor's remarks were so misleading that a mistrial
should be declared, the trial court denied the motion for
mistrial, and refused appellant's request to admonish the
jury; appellant cited no authority for his allegation of
error; leeway is given to both sides during closing argument,
the prosecutor was simply arguing her case to the jury; the
trial court did not abuse its discretion in denying
appellant's motion for mistrial.
19. Evidence -- review of sufficiency of -- evidence of
aggravating or mitigating circumstances should be submitted to
jury. -- On appeal, the court reviews the sufficiency of the
State's evidence in the light most favorable to the State to
determine whether any rational trier of fact could have found
the existence of the aggravating circumstance beyond a
reasonable doubt; whenever there is any evidence of an
aggravating or mitigating circumstance, however slight, the
matter should be submitted to the jury for consideration.
20. Evidence -- "avoiding arrest" aggravating circumstance
discussed -- purpose of. -- The statutory aggravating
circumstance at issue is "apparently designed to deter
deliberate murderous acts subversive of the criminal justice
system in particular and social order in general, and to
protect certain persons deemed especially important to the
integrity of both, including law enforcement officers, prison
guards, and actual or potential witnesses in judicial
proceedings"; where the victim is not a law enforcement
officer, the State must clearly show that prevention of
detection and arrest for the offense was the dominant or only
motive for the killing.
21. Criminal law -- "avoiding arrest" aggravating circumstance --
murder committed in order to avoid arrest or eliminate
witness to another offense committed in connection with
murder. -- A consequence of every murder is the elimination of
the victim as a potential witness; however, avoiding arrest is
not necessarily an invariable motivation for killing; a common
thread in many of the supreme court's prior decisions
involving the "avoiding arrest" aggravating circumstance is
that the murder was committed in order to avoid arrest or
eliminate a witness to another offense committed in connection
with the murder.
22. Evidence -- appellant never used force to remove girlfriend
from trailer -- appellee's argument fatally flawed. --
Appellee's assertion that, based on testimony by a friend of
appellant, the jury could have inferred that appellant
returned to the trailer for the purpose of retrieving his
girlfriend, and that he shot and killed the four victims at
issue in order to prevent them from having him arrested if he
used force to remove her from the trailer, was not accepted by
the court; the State's argument was contrary to the friend's
testimony during the penalty phase and the record revealed no
testimony at trial, from any witness, that appellant made any
attempt to forcibly remove his girlfriend from the trailer, or
that he shot and killed the four victims in order to prevent
them from having him arrested if he used force to remove her
from the trailer; moreover, appellant never used force to
remove his girlfriend from the trailer; thus, the killings
could not have been committed to avoid being arrested for an
offense that did not occur; to accept appellee's argument
would be to ignore the evidence of appellant's motive that is
in the record -- that appellant killed the victims because
they had run him off and kept his girlfriend and would not let
him take her with him.
23. Evidence -- evidence as to one victim left room for inference
that appellant killed stranger to avoid arrest -- submission
of aggravating circumstance as to him alone proper. -- Where,
with respect to the fourth victim, the jury could have taken
into account a witness's testimony that appellant had stated
to him that that victim was "in the wrong place at the wrong
time," the jury could have inferred that appellant killed the
man, a person he did not know, for no logical reason such as
revenge or accident; thus, while there was insufficient
evidence to support the submission of the "avoiding arrest"
aggravating circumstance to the jury on the counts relating to
the other three victims, the court found no error in the
submission of this aggravator on the count relating to the
fourth victim.
24. Criminal law -- statutory harmless error analysis performed in
penalty phase only if no mitigating circumstances found by
jury -- jury found two mitigating circumstances on each count
-- case reversed for resentencing. -- The statutory harmless
error analysis in the penalty phase can be performed only if
jury found no mitigating circumstances; here, the jury
unanimously found two mitigating circumstances on each count:
(1) appellant grew up in an environment of abuse and
alcoholism, and (2) appellant grew up in an environment where
his father provided an example of extreme violent reactions to
situations; the case was reversed for resentencing on the
counts relating to the first three victims.
25. Criminal law -- victim-impact statute not void for vagueness -
- State has legitimate interest in counteracting defendant's
mitigating evidence. -- Arkansas's victim-impact statute, Ark.
Code Ann. 5-4-602(4)(Repl. 1993), is not void for vagueness;
the United States Supreme Court permits the States to
authorize victim-impact testimony; the Court referred
specifically to who might qualify as being impacted by a
victim's death and to the State's legitimate interest in
counteracting the defendant's mitigating evidence and in
reminding the jury that the victim was a person "whose death
represents a unique loss to society and in particular to his
family"; thus, testimony may range from the victim's family to
those close to that person who were profoundly impacted by his
death; the court declined to hold Act 1089 of 1993 to be
impermissibly vague.
26. Criminal law -- victim impact statute -- statute not violative
of Ark. Code Ann. 5-4-603--604. -- The victim impact statute
does not conflict with Ark. Code Ann. 5-4-603 and -604
(Repl. 1993), which direct the jury to determine whether
aggravating circumstances exist, to weigh any aggravating
circumstances against any mitigating circumstances, and to
determine whether the aggravating circumstances justify a
death sentence beyond a reasonable doubt; the State has a
legitimate interest in counteracting the defendant's
mitigating evidence, there is nothing unfair about allowing
the jury to bear in mind the specific harm caused by the
defendant at the same time it considers the mitigating
evidence introduced by the defendant; a State may legitimately
conclude that evidence about the victim and about the impact
of the murder on the victim's family is relevant to the jury's
decision as to whether or not the death penalty should be
imposed.
27. Criminal law -- victim-impact statute -- Eighth Amendment not
violated. -- Appellant's claim that the victim-impact statute
was violative of the Eighth Amendment was without merit; the
United States Supreme Court has held that "a capital sentencer
need not be instructed how to weigh any particular fact in the
capital sentencing decision"; in so holding, the Court
recognized that a contrary rule would force the states to
adopt a kind of mandatory sentencing scheme requiring a jury
to sentence a defendant to death if it found, for example, a
certain kind or number of facts, or found more statutory
aggravating factors than mitigating factors; the states are
not required to conduct the capital sentencing process in that
fashion.
28. Criminal law -- victim-impact statute -- statute not violative
of Arkansas Constitution. -- Appellant's assertion that the
victim-impact statute violated Art. 2, 9, of the Arkansas
Constitution was groundless where he failed to present any
argument showing why the court should interpret this provision
in a manner contrary to that of the Eighth Amendment to the
United States Constitution; while the Eighth Amendment erects
no per se bar to the introduction of victim impact testimony,
when evidence is introduced that is so unduly prejudicial that
it renders the trial fundamentally unfair, the Due Process
clause of the Fourteenth Amendment provides a mechanism for
relief; after reviewing the victim-impact evidence presented,
the supreme court determined that this line was not crossed.
29. Criminal law -- victim-impact testimony allowed at trial --
testimony not so unduly prejudicial that it rendered
appellant's trial fundamentally unfair. -- Testimony by
sisters of one victim about the loss they felt after their
brother's death, testimony by the daughter and sister of two
of the victims, and that of the sisters of a third victim was
not so unduly prejudicial that it rendered appellant's trial
fundamentally unfair.
30. Jury -- jury instruction properly refused -- non-model
instructions given only in limited instances. -- Appellant's
contention that the trial court erred in refusing to give to
the jury his proffered penalty-phase instruction, which was
not the model instruction, was meritless where the model
instruction was sufficient; non-model instructions are to be
given only when the trial court finds that the model
instructions do not accurately state the law or do not contain
a necessary instruction on the subject; it was not error to
refuse the appellant's proffered instruction.
31. Jury instructions -- AMCI 2d 1509 Form 3 not violative of
Eighth Amendment -- jury expressly allowed to list mitigating
circumstances found by some, but not all, of its members. --
Appellant's assertion that AMCI 2d Form 3 was violative of the
Eighth Amendment because it was phrased in such a way so as to
inform each juror that he or she could not consider evidence
of a mitigating circumstance unless all other jurors
unanimously agreed that the evidence supported the finding of
the mitigating circumstance was rejected; Form 2, which
accompanies AMCI 1509, expressly allows the jury to list
mitigating circumstances which were found by some, though not
all, of its members, Form 3 then allows the jury to determine
if the aggravating circumstances outweigh any mitigating
circumstances; nothing in the forms indicates to the jury that
a mitigating circumstance must be found unanimously before it
may be considered in the weighing process.
32. Criminal law -- assertions of error foreclosed by Blystone v.
Pennsylvania. -- Appellant's assertions that the trial court
erred (1) in refusing his proffered modified version of AMCI
2d Form Three, which would inform the jury that they "may" but
were not required to give death even if all the
interrogatories were answered in the affirmative, and (2) in
refusing to modify Form Three to read, "the aggravating
circumstances, when weighed against the mitigating
circumstances, justify beyond a reasonable doubt a sentence of
death," were, as he conceded, foreclosed by the United States
Supreme Court's decision in Blystone v. Pennsylvania, 494 U.S. 299 (1990).
33. Criminal law -- refusal to strike "risk of death to others"
aggravating circumstance not error -- court refused to
overrule Cox v. State. -- Appellant's contention that the
trial court erred in refusing to strike the "risk of death to
others" aggravating circumstance was without merit, and his
request that the court overrule Cox v. State, 313 Ark. 184,
853 S.W.2d 266 (1993), in which it was held that the killing
of more than one person "automatically" converts a case into
a death case because the "risk of death to others" aggravating
circumstance also covers actual deaths, was declined.
Appeal from Pulaski Circuit Court, First Division; Marion
Humphrey, Judge; affirmed in part; reversed and remanded in part.
Jeff Rosenzweig and Judy Rudd, for appellant.
Winston Bryant, Att'y Gen., by: Clint Miller, Deputy Att'y
Gen., Sr. Appellate Advocate for appellee.
Bradley D. Jesson, Chief Justice. April 22, 1996 *ADVREP1*
TIMOTHY WAYNE KEMP,
APPELLANT,
V.
STATE OF ARKANSAS,
APPELLEE,
CR95-549
APPEAL FROM THE PULASKI COUNTY
CIRCUIT COURT, FIRST DIVISION
(CR93-2903)
HONORABLE MARION HUMPHREY
CIRCUIT JUDGE
AFFIRMED IN PART; REVERSED AND
REMANDED IN PART.
Chief Justice Bradley D. Jesson
On October 4, 1993, police found the bodies of David Wayne
Helton, Robert "Sonny" Phegley, Cheryl Phegley, and Richard "Bubba"
Falls in a trailer on Highway 107 in Jacksonville. Each had been
shot, and all but Falls had been shot more than once. Becky
Mahoney, who had been hiding in a bedroom closet during the
shootings, phoned 911. Shortly thereafter, her then-boyfriend,
appellant Timothy Wayne Kemp, was arrested and charged with four
counts of capital murder. He was convicted and sentenced to death
by lethal injection on each count. He appeals from these
convictions. We affirm the conviction and sentence pertaining to
victim Falls, and affirm the convictions only as to the remaining
three counts. We must reverse the death sentences as to these
counts and remand for resentencing, as there was insufficient
evidence to support the trial court's instruction to the jury with
respect to the statutory aggravating circumstance that the murders
were committed for the purpose of avoiding arrest.
Sufficiency of the evidence
Appellant asserts that there was insufficient evidence of
premeditation and deliberation to prove the four capital murder
charges, particularly in light of the evidence presented that he
acted in self-defense. When an appellant challenges the
sufficiency of the evidence, we address that issue prior to all
others. Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702 (1996).
The test for determining the sufficiency of the evidence is whether
there is substantial evidence to support the jury's verdict. Id.
Substantial evidence is that which is forceful enough to compel a
conclusion one way or another and which goes beyond mere
speculation or conjecture. Id.; Davis v. State, 317 Ark. 592, 879 S.W.2d 439 (1994). We review the evidence in the light most
favorable to the appellee and consider only that evidence which
supports the verdict. Misskelley v. State, supra; Moore v. State,
315 Ark. 131, 864 S.W.2d 863 (1993). Intent to commit murder may
be inferred from the type of weapon used, and the nature, extent,
and location of the wounds. Dansby v. State, 319 Ark. 506, 893 S.W.2d 331 (1995); Allen v. State, 310 Ark. 384, 838 S.W.2d 346
(1992).
The State elicited the following testimony at trial. Becky
Mahoney, who had been living with appellant for eight years,
testified that she and appellant were riding around in appellant's
truck drinking beer on the date in question when they stopped at
Wayne Helton's trailer to visit Helton and Sonny and Cheryl
Phegley. Once inside, they all drank beer and danced as Sonny
picked the guitar. Also present in the trailer was a man Becky
knew only as "Bubba," who was later identified as Richard Falls.
A couple of hours had passed before appellant became angry with
Becky and asked her to leave with him. She refused, as she was
scared of the appellant. After Cheryl asked appellant "two or
three times" to leave, he complied. Becky became upset and planned
to have Cheryl take her home because she was afraid appellant would
return, and she didn't want any trouble.
Before Cheryl could take Becky home, someone knocked on the
door. Becky "had a feeling" it was the appellant. As she was
standing in the hallway between the kitchen and the living room,
she heard a gun go off and saw "Bubba" fall. Cheryl then fell,
yelling, "Oh, my God. Oh, my God." Becky then ran to a bedroom and
hid in the closet. The gun kept going off. After the gunfire
ceased, Becky left the closet and went into the living room, where
she saw three of the victims on the floor. She dialed 911, and
while on the telephone, she "heard [appellant's] truck start up."
She was positive it was the appellant's truck because she had been
around it so long. While Becky estimated that she and the
appellant had consumed approximately one case of beer apiece on the
date in question, she did not consider the appellant "drunk," as it
was not unusual for him to drink a lot of beer in the course of a
day.
Officers arrived at the scene to find the bodies of the four
victims, twelve spent .22 caliber shell casings, and a .32 caliber
pistol. Based on Becky's description of the appellant and his
truck, they located and arrested appellant at the residence of Bill
Stuckey in Cabot. Officer David Adams testified that, after he
orally advised appellant of his Miranda rights, appellant stated
that "these people beat his ass and threatened him and he was just
defending himself." Pursuant to a consent form signed by the
appellant's mother, Lillie Kemp, officers searched her residence at
7710-D Swaggerty Road in Jacksonville, where appellant and Becky
also resided. A box of ammunition and a blue shirt were retrieved
from appellant's bedroom. Pursuant to appellant's written consent,
officers recovered a .22 Ruger semi-automatic rifle in Lillie
Kemp's closet and a box of .22 Remington shells in the front seat
of appellant's vehicle.
Bill Stuckey testified that he had been appellant's best
friend for some seven or eight years. Appellant and Becky dropped
by his residence during the afternoon hours of October 4 and stayed
approximately one hour. According to Stuckey, appellant returned
to his home and awakened him at approximately 2:00 a.m., asking to
borrow $20.00 for gasoline. Appellant was going to leave town and
told Stuckey that he had shot Helton and some other people at
Helton's residence, including the two Phegleys and another man he
did not know. Appellant told Stuckey that "the other guy was just
in the wrong place at the wrong time." Appellant stated that the
people in the trailer ran him off, kept Becky at the trailer, and
would not let her leave with him. Appellant then went home, got
his gun, went back to the trailer, and shot them. Particularly,
appellant told Stuckey that he had parked down the road behind the
store and walked up through the woods about 50 yards to the porch
of the trailer. Appellant knocked on the door, and when Helton
answered, appellant shot him. Appellant then went in and shot the
other people. When Cheryl tried to go down the hallway to one of
the bedrooms, he followed her down the hall and shot her again,
assuring her that, "yes, she was going to die." Appellant told
Stuckey that Cheryl had started all the argument, and that he could
"hear [the victims] gasping for breath as he was leaving." It was
Stuckey's testimony that appellant was drinking when he came to his
trailer, but was not "knee-walking" drunk, as he had seen him drunk
before. Stuckey clarified that he had no trouble understanding
appellant, who was confused because he could not find Becky.
Dr. Frank Peretti, a forensic pathologist with the State Crime
Lab, performed autopsies on all four victims. He observed five
gunshot wounds on Cheryl's body, which included wounds to the right
scalp, left arm, left midback, and left fifth finger. According to
Dr. Peretti, either the wound to the arm or back could have killed
her. Richard Falls died from a single gunshot wound to the right
chest. On Robert Phegley's body, Dr. Peretti observed wounds to
the head and left arm. As Robert would have died from the head
wound alone, the wound to the arm, according to Dr. Peretti, was
defensive in type and the first wound sustained, as Robert could
not have raised his arm if he had been initially shot in the head.
Finally, Dr. Peretti opined that Wayne Helton could have died from
any of four gunshot wounds he sustained to the right upper chest,
right mid chest, right forehead, and left lip. Regarding the lip
wound, there was evidence of close range firing, estimated at one-
quarter to one-half inch, due to the presence of soot around the
wound. The wound to the right forehead also exhibited evidence of
close-range firing, and the trajectory of this wound was consistent
with Helton being on his back when the bullet was delivered.
Ronald Andrejack, a firearms expert with the State Crime Lab,
testified that the bullets recovered from the bodies of both
Phegleys and Richard Falls were fired from the .22 Ruger rifle
recovered from appellant's residence. All twelve of the .22
caliber shell casings retrieved from the trailer were Remingtons,
the same brand located in appellant's vehicle.
When considering Dr. Peretti's testimony regarding the nature,
extent, and location of the victim's wounds, the jury could have
easily inferred that appellant fired the shots into the victims in
a premeditated and deliberated manner. Also significant was Bill
Stuckey's testimony that appellant admitted to killing three of the
victims because he was angry at them for running him off and not
letting Becky leave with him, and a fourth because he was "at the
wrong place at the wrong time." In light of this evidence, the
State's proof was sufficient that the appellant's killings of the
four victims were premeditated and deliberate acts.
Hunt Decree
Appellant argues that his case was not properly triable in the
First Division of the Pulaski County Circuit Court. Asserting that
the Consent Decree entered by the United States District Court in
Hunt v. State, No. PB-C-89-406 (Nov. 7, 1991), divided the Sixth
Judicial District (Pulaski and Perry Counties) into two separate
judicial districts, he claims that the murders occurred outside the
area from which First Division Circuit Judge Marion Humphrey was
elected; therefore, Judge Humphrey was without territorial
jurisdiction to hear his case.
Very recently, in State v. Webb, 323 Ark. 80, 87A, ___ S.W.2d
___,___ (1996)(supplemental opinion denying rehearing), a case
involving the territorial jurisdiction of municipal courts, we
reviewed the law on this subject as follows:
If the allegation of a charging instrument were that
an offense occurred outside the territorial jurisdiction
of the court, then a judgment rendered by the court would
be void. Waddle v. Sargent, 313 Ark. 539, 855 S.W.2d 919
(1993); Williams v. Reutzel, 60 Ark. 155, 29 S.W. 374
(1895); RESTATEMENT (SECOND) OF JUDGMENTS 4 (1982).
The law in this State is that a criminal trial must
be held in the county in which the crime was committed,
provided that venue may be changed, at the request of the
accused, to another county in the judicial district in
which the "indictment is found." Ark. Const. art. 2,
10; Waddle v. Sargent, supra. These authorities limit a
circuit court to trying a criminal case in the county in
which the crime was committed unless the accused requests
the trial be moved to another county which, in any case,
must be a part of the judicial district served by the
court.
[O]ur circuit courts are thus limited to trying
accusations of crimes which occurred in the counties, or
judicial districts, in which they sit . . . .
323 Ark. 80 at 83. In Caldwell v. State, 322 Ark. 543, 910 S.W.2d 667 (1995), we addressed, for the first time, whether the electoral
subdistricts contemplated in the Hunt Consent Decree are judicial
districts under our Constitution and statutes. Appellant Caldwell,
convicted of first-degree murder, argued that the jury venire in
his case should have been quashed because it was not made up solely
of registered voters from the judicial district where the crime was
committed. According to Caldwell, the Hunt Decree, while
establishing new judicial districts favoring the election of
minority judges, also required that juries be selected from
registered voters who lived in these new districts when crimes were
committed there. Caldwell further argued that while the offense
was committed in a new district, only three jurors who were
registered voters of the new district served on his jury, which
violated Arkansas law and the Sixth Amendment to the United States
Constitution. In rejecting Caldwell's argument, we stated:
The Consent Decree invoked by Caldwell in this
appeal did have as its purpose "to provide African
American voters improved and equal access to the
political processes for electing judges to the trial
courts of general jurisdiction in the State of Arkansas
and to enhance the political participation and awareness
of all citizens." The Consent Decree also states that
the lines of existing judicial districts will not be
disturbed by the remedy except to the extent that
electoral subdistricts are created. The Decree then goes
forward and creates "majority African American and
majority white population electoral subdistricts in
Judicial Districts One, Two, Six, Ten, and Eleven West .
. . ."
. . . .
In the case at hand, there is no constitutional or
legislative provision that divides the Tenth Judicial
District into two judicial districts. Added to this
point is the fact that the language of the Consent Decree
states that its remedy is directed at violations of the
United States Voting Rights Act, and it specifically
states that it "will not disturb existing district lines
of the present judicial districts except to the extent
that it creates electoral subdistricts . . . ." Other
than inserting this new electoral district for the
purposes of electing minority judges, no other aspects of
the Tenth Judicial District were to be affected.
According to the Consent Decree, the judges elected from
the electoral subdistricts would exercise jurisdiction
district-wide, and there was no requirement that each
judge reside within the electoral district.
322 Ark. 543 at 548-549.
In this case, the appellant argues that, under the Arkansas
Constitution, the "defining characteristic of a circuit judge" is
that he or she be chosen by all and not merely some of the
qualified electors of the judicial district in which he or she is
to presides. In support of this argument, appellant cites Ark.
Const. art 7, 17, which states:
The judges of the circuit court shall be elected by
the qualified electors of the several circuits, and shall
hold their offices for a term of four years.
As we recognized with respect to the Tenth Judicial District in
Caldwell, there is no constitutional or legislative provision that
divides the Sixth Judicial District into two judicial districts.
We see nothing in the plain language of Ark. Const. art. 7, 17,
that effects such a division.
Appellant further relies on our decision in Riviere v.
Hardegree, 278 Ark. 167, 644 S.W.2d 276 (1983). In that case, we
considered whether the General Assembly, in passing Act 432 of
1977, had created one or two separate judicial circuits to serve
the area of Garland, Polk, and Montgomery counties. The Act stated
that one circuit, Eighteenth Circuit-East, would be composed of
Garland County, and the other, Eighteenth Circuit-West, would be
composed of Polk and Montgomery counties. However, in a separate
act, the General Assembly had made an appropriation for only one
prosecuting attorney. Adhering to the "plain-meaning rule" of
statutory interpretation, we held that the clear language of the
Act created two circuits, and that Ark. Const. art 7, 24,
plainly requires each circuit to have an office of prosecuting
attorney. Riviere is distinguishable, as it involved statutory
interpretation of an act of the General Assembly. We recognized in
Caldwell that
[t]here simply has been no effort by the General Assembly
to convert the electoral subdistricts [created in Hunt]
into entirely separate and self-contained judicial
districts with all the attendant ramifications. We hold
that the electoral subdistricts within the Tenth Judicial
District are not judicial districts and that the venire
in this case was properly drawn from Drew County as a
whole.
322 Ark. 543 at 549. Appellant also maintains in his opening brief
that his Sixth Amendment rights were violated by his prosecution in
the First Division of Pulaski County Circuit Court. Similarly, the
appellant in Caldwell maintained that he had a Sixth Amendment
right to have the jurors in his case selected from the electoral
subdistrict where the crime was committed. In rejecting Caldwell's
claim, we reasoned that:
we do not perceive the new subdistricts as having been
created for reasons other than for the elections of
minority judges. We hold that the Tenth Judicial
District remains intact under state law and that the
state's judicial districts are the districts referenced
in the Sixth Amendment as opposed to the electoral
subdistricts established in the Consent Decree.
Id. at 549-550 (Emphasis added). In sum, we see no reason to
depart from our recent decision in Caldwell, and conclude that
territorial jurisdiction was proper in this case.
Proffered instructions on "imperfect" self-defense
Appellant next asserts that the trial court erred in refusing
his proffered instructions on what he terms "imperfect self-
defense." Neither of appellant's proffered instructions is an AMCI
Instruction. We can easily dispose of appellant's argument as to
one of these instructions, which reads as follows:
When a person believes that the use of force is
necessary in defense of himself but that person is
reckless or negligent either in forming that belief or in
employing an excessive degree of physical force, the
defense of justification -- use of deadly physical force
in self-defense -- is unavailable as a defense to any
offense for which recklessness or negligence suffices to
establish culpability.
Source: Ark. Code Ann. 5-2-614.
While appellant contends that this instruction is an accurate
statement of the law as found in Ark. Code Ann. 5-2-614 (Repl.
1993), the instruction omits the phrase "is necessary for any of
the purposes justifying that use of force under this subchapter,"
which appears in 5-2-614(a). Thus, because appellant's proffered
instruction did not correctly state the law, the trial court did
not err in refusing to give it. See Pickett v. State, 321 Ark.
224, 902 S.W.2d 208 (1995).
Appellant also proffered the following instruction based on
Ark. Code Ann. 5-2-206 (d)(Repl. 1993), regarding ignorance or
mistake:
It is a defense to a prosecution that Timothy Wayne
Kemp acted under a mistaken belief of fact that he was
justified in using deadly physical force in self defense.
Although mistake of fact would otherwise afford a
defense to the offense charged, the defense is not
available if the defendant would be guilty of another
offense had the situation been as he supposed. In such
case, however, the mistake of fact of the defendant shall
reduce the class or degree of the offense of which he may
be convicted to those of the offense he would be guilty
of had the situation been as he supposed.
Source: Ark. Code Ann. 5-2-206.
While the trial court did instruct the jury as to self-defense,
appellant asserts that his federal and state due process rights
were violated as a result of the trial court's refusal to give his
proffered "imperfect self-defense" instruction. We do not agree.
Appellant's proffered instruction merely emphasizes his theory of
the case that his intoxication should be considered as diminishing
his capacity to form the requisite intent to commit capital murder.
See Caldwell v. State, supra. Yet the trial court's refusal to
give appellant's requested instruction did not eliminate the
State's burden to prove premeditated and deliberated murder beyond
a reasonable doubt. The jury was instructed in this respect, and
was also instructed on the lesser-included offenses of first-degree
murder, second-degree murder, and manslaughter. In short, the
evidence relating to the element of premeditated and deliberated
murder was for the jury to weigh and evaluate in light of the
State's burden to prove that intent beyond a reasonable doubt. As
it is clear that this burden remained with the State, we cannot
agree that the trial court's refusal to give appellant's proffered
instruction violated his due process rights.
For cause challenges
Appellant contends that his federal and state due process
rights were violated when the trial court refused to strike certain
potential jurors for cause, namely Annette Waters, Larry Cheatham,
Cecilia Baca, Carol Stroman, Catherine Dumas, Felix Clark, Billy
Trimble, and Ray Keech. He asserts that he was forced to "waste"
peremptory challenges on these persons.
The standard for determining if a prospective juror should be
excused for cause is whether the juror's views about the death
penalty would prevent, or substantially impair, the performance of
the juror's duties in accordance with the instructions and the oath
taken. Nooner v. State, 322 Ark. 87, 907 S.W.2d 677 (1995). A
claim of error relating to a challenge for cause is only preserved
regarding jurors who actually sat on the jury after a challenge for
cause was denied. Franklin v. State, 314 Ark. 329, 863 S.W.2d 268
(1993); Pickens v. State, 301 Ark. 244, 783 S.W.2d 341 (1990),
cert. denied, 497 U.S. 1011 (1990), citing Ross v. Oklahoma, 487 U.S. 81 (1988). In Arkansas, it is presumed that persons
comprising the venire are unbiased and qualified to serve. Franklin
v. State, supra, citing Fleming v. State, 284 Ark. 307, 681 S.W.2d 390 (1984). It was appellant's burden to prove otherwise. Id. We
will not disturb a trial court's ruling on this issue absent an
abuse of discretion. Id.; Butler v. State, 303 Ark. 380, 797 S.W.2d 435 (1990).
In this case, only one potential juror, Judy Cook, was seated
after appellant's peremptory strikes were exhausted and his
challenge for cause denied. In his brief, appellant merely states
that he challenged Cook on a "totality of the circumstances" test,
and that he identified her as one against whom he would have
exercised a peremptory challenge had he had one remaining.
During voir dire, when initially questioned by the deputy
prosecutor whether she thought there were cases where the death
penalty was a proper punishment, Ms. Cook responded that, in a
capital murder trial, if the accused is guilty beyond any doubt,
the death penalty would be proper. After the prosecutor explained
that the State had the burden of proving aggravating circumstances
during the separate penalty phase, Ms. Cook stated that she
understood that at the end of the guilt phase, the death penalty
could not be imposed unless and until the State puts on further
proof. She stated she understood that the defendant was not
required to put on any proof at all, and that she could be an
impartial, fair juror and follow the law as given to her by the
trial court.
During appellant's questioning of Ms. Cook, she responded that
she had no problem with the fact that the evidence in the case
would deal with the use or abuse of alcohol, and stated that the
knowledge that alcohol was involved did not cause her to feel
prejudiced toward either party. Regarding the death penalty, Ms.
Cook stated that her opinion had background from the Old Testament,
particularly the book of Exodus, "where you have to make equal
recompense for whatever your offense was," and from obedience to
civil laws. She specifically stated that if a case were fully
planned and premeditated, she would not automatically be for the
death penalty, as "[i]t would have to meet all the rules. I mean
whatever rules were given or set down, it would have to meet all
those circumstances." She further stated that she did not think
she would be leaning toward the death penalty in such a case, and
that "it would be up to the State to prove" that a person should
receive the death penalty. She concluded that both life without
parole and the death penalty were very harsh punishments. When
examining Ms. Cook's remarks, we agree that her answers did not
render her unfit to serve on the jury. Thus, we reject appellant's
argument on this point.
Overlap of offenses
Next, appellant argues that the capital murder statute is
unconstitutionally vague in violation of the Eighth and Fourteenth
Amendments because it provides no meaningful distinction between
"premeditation and deliberation" and the definition of "purpose" in
the first-degree murder statute. We have rejected this argument on
several occasions. See e.g., Nooner v. State, supra; Dansby v.
State, supra; Sheridan v. State, 313 Ark. 23, 852 S.W.2d 772
(1993); Ward v. State, 308 Ark. 415, 827 S.W.2d 110, cert. denied,
506 Ark. 841 (1992).
Prosecutor's closing argument
Appellant alleges that the trial court erred in denying his
motion for mistrial after the deputy prosecutor made an improper
remark during closing arguments in the guilt-innocence phase of the
trial. The remark at issue is as follows:
Wayne Helton is shot twice in the body and he's
going to die from those gunshot wounds. And I know that
his family, when they heard Dr. Peretti testify, they
just prayed he was already dead . . .
Appellant objected to the remark, and counsel for both parties
approached the bench. He argued that it was improper for the
prosecutor to refer to the reaction of someone who may or may not
have been in the audience, especially when he had agreed to allow
the family members to remain in the courtroom as a courtesy.
Appellant requested a mistrial and without waiving this request,
asked the trial court to admonish the jury to disregard the
comment. The trial court denied the motion to mistrial, but
admonished the jury as follows:
The jury is instructed to disregard references to
feelings of persons where there is no evidence before
this Court through testimony and exhibits.
On appeal, appellant argues that this admonition was insufficient
to cure the prejudice caused by the prosecutor's blatantly improper
argument. In support of his position, he cites Timmons v. State,
286 Ark. 42, 688 S.W.2d 944 (1985). Timmons is clearly
distinguishable. In that case, the prosecutor called a witness to
the stand when he knew that the witness could not give valid,
relevant testimony, and then argued that it was the appellant who
prevented the jury from hearing the evidence. The prosecutor had
earlier admitted that the witness, a forensic serologist from the
state crime lab, could not connect the chain of custody about the
materials she had examined in appellant's rape case. The
prosecutor's "desire for success" caused him to use improper
strategy to try to obtain the appellant's conviction. Id. at 44.
Here, the prosecutor's statement was not of such magnitude to
require a mistrial. A mistrial is a drastic remedy to which the
court should resort only when there has been an error so
prejudicial that justice cannot be served by continuing the trial;
it should only be ordered when the fundamental fairness of the
trial itself has been manifestly affected. King v. State, 317 Ark.
293, 877 S.W.2d 583 (1994). The trial court has wide discretion in
granting or denying a motion for a mistrial and its discretion will
not be disturbed except where there is an abuse of discretion or
manifest prejudice to the complaining party. Id. An admonition to
the jury usually cures a prejudicial statement unless it is so
patently inflammatory that justice could not be served by
continuing the trial. Id. Recently, we reiterated that attorneys
are given leeway in closing remarks. Bowen v. State, 322 Ark. 483,
906 S.W.2d 681 (1995). Moreover, the trial court instructed the
jury that closing arguments were not evidence. In this case, we
conclude that the admonition cured any prejudice.
Other guilt-innocence phase objections
In addition to the allegations of error discussed above,
appellant presents brief arguments in support of six other
assignments of error which he claims occurred during the guilt-
innocence phase of his trial. First, he claims that the trial
court refused to suppress the oral statement he made to Officer
David Adams that the victims "beat his ass and threatened him and
he was just defending himself." His argument is that, since he had
consumed at least a case of beer in the eight to twelve hours prior
to offering this statement, he was so intoxicated that he did not
knowingly, intelligently, and voluntarily waive his rights under
the Fifth Amendment to the United States Constitution and Ark.
Const. art. 2, 8. We have held that, whether an accused had
sufficient mental capacity to waive his constitutional rights, or
was too incapacitated due to drugs or alcohol to make an
intelligent waiver is a question of fact for the trial court to
resolve. Phillips v. State, 321 Ark. 160, 900 S.W.2d 526 (1995).
The fact that the accused might have been intoxicated at the time
of his statement, alone, will not invalidate that statement, but
will only go to the weight accorded it. Id. Thus, appellant's
argument is meritless. Appellant makes similar objections in favor
of suppression of the box of .22 Remington shells seized from his
truck. Likewise, appellant's argument that he was too intoxicated
to make an intelligent waiver to the search of his vehicle goes to
weight rather than admissibility.
Appellant further argues that the trial court erred in
refusing to enjoin the prosecutor from claiming to represent "The
People," as Arkansas has specifically rejected this formulation and
prosecutions are made in name of the State. Appellant cites no
authority nor makes a convincing argument in support of his
assertion of error. Moreover, we can see no prejudice in the trial
court's failure to so enjoin the prosecutor, and will not reverse
in the absence of prejudice. Misskelley v. State, supra; citing
Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984), cert. denied,
470 U.S. 1085 (1985).
Prior to individual voir dire, the prospective jurors were
asked some questions as a group. One prospective juror, Dewey
Harvey, stated that his wife worked with someone who was related to
one of the witnesses, particularly, "the girl that was hid in the
closet," obviously referring to Becky Mahoney. Appellant moved to
quash the panel on the grounds that this statement was prejudicial.
The prosecutor responded that since there would be testimony that
Becky hid in the closet, the panel did not hear anything that they
would not hear if Harvey were selected as a juror. The trial court
denied the motion to quash. At trial, Becky Mahoney testified that
she hid in a closet in the trailer during the shootings. Again,
the appellant cannot show he was prejudiced by the trial court's
ruling. Id.
The trial court also denied appellant's motion for mistrial,
which was based on the following remark made by the prosecutor
during closing arguments:
If you find an instruction in there that says
intoxication is a defense to the slaughter that this man
committed in this trailer that night, then you find him
guilty of . . . .
Appellant argued that he had not stated that intoxication was a
defense; rather, he had argued "the mental state." According to
appellant, the prosecutor's remarks were so misleading that a
mistrial should be declared. The trial court denied the motion for
mistrial, and refused appellant's request to admonish the jury.
While appellant cites no authority for this allegation of error, he
asserts that the "greater prejudice" resulted from the denial of
his requested "imperfect self-defense" instructions. As discussed
above, we rejected appellant's allegation of error concerning the
trial court's denial of his proffered instructions. Regarding the
deputy prosecutor's argument here, we repeat that leeway is given
to both sides during closing argument. See Bowen v. State, supra.
The prosecutor was simply arguing her case to the jury. We
conclude that the trial court did not abuse its discretion in
denying appellant's motion for mistrial. King v. State, supra.
"Avoiding arrest" aggravating circumstance
We now consider the assignments of error involving the penalty
phase. Appellant argues that there was insufficient evidence of
the aggravating circumstance that the murders were committed for
the purpose of avoiding or preventing an arrest or effecting an
escape from custody as set forth in Ark. Code Ann. 5-4-604
(5)(Repl. 1993). On appeal, we review the sufficiency of the
State's evidence in the light most favorable to the State to
determine whether any rational trier of fact could have found the
existence of the aggravating circumstance beyond a reasonable
doubt. Coulter v. State, 304 Ark. 527, 533, 804 S.W.2d 348,
351-52, cert. denied, 502 U.S. 829 (1991) (citing Lewis v. Jeffers,
497 U.S. 764, 780-82 (1990)). Whenever there is any evidence of an
aggravating or mitigating circumstance, however slight, we have
held that the matter should be submitted to the jury for
consideration. Miller v. State, 269 Ark. 341, 605 S.W.2d 430, cert.
denied 450 U.S. 1035 (1981).
At least one commentator has recognized that the statutory
aggravating circumstance at issue is "apparently designed to deter
deliberate murderous acts subversive of the criminal justice system
in particular and social order in general, and to protect certain
persons deemed especially important to the integrity of both,
including law enforcement officers, prison guards, and actual or
potential witnesses in judicial proceedings." See Thomas M.
Fleming, Annotation: Sufficiency of the Evidence, for Purposes of
Death Penalty, to Establish Statutory Aggravating Circumstance that
Murder Was Committed to Avoid Arrest or Prosecution, to Effect
Escape from Custody, to Hinder Governmental Function or Enforcement
of Law , and the Like -- Post-Gregg Cases, 64 A.L.R.4th 755, 763
(1988 and Supp. 1995)(footnotes omitted). Many courts, according
to this commentator, follow the rule that, where the victim is not
a law enforcement officer, the State must clearly show that
prevention of detection and arrest for the offense was the dominant
or only motive for the killing. Id. at 766 (footnotes omitted).
We recognize that a consequence of every murder is the
elimination of the victim as a potential witness. However,
avoiding arrest is not necessarily an invariable motivation for
killing. See Whitmore v. Lockhart, 834 F. Supp. 1105 (E.D.Ark.
1992), aff'd 8 F.3d 614 (8th Cir. 1993). A common thread in many
of our prior decisions involving the "avoiding arrest" aggravating
circumstance is that the murder was committed in order to avoid
arrest or eliminate a witness to another offense committed in
connection with the murder. See e.g., Porter v. State, 321 Ark.
555, 905 S.W.2d 835 (1995)(the jury could have found beyond a
reasonable doubt that appellant killed victim to avoid being
arrested for robbery due to nature of victim's head wound and the
fact that appellant had spoken to victim, who could have identified
him as one of the robbers); Coulter v. State, supra (child victim
obviously knew appellant and would have been able to identify him
as the man who raped her; the ends to which appellant went in
trying to hide the body, coupled with his almost immediate
departure from the area where the offense occurred, was clear
evidence of his other efforts to avoid arrest); Wainwright v.
State, 302 Ark. 371, 790 S.W.2d 420, cert. denied 499 U.S. 913
(1990)(sufficient evidence presented where appellant had prior
dealings with the victim, and knowing his name, the victim could
have identified appellant as having committed the robbery); Pickens
v. State, 292 Ark. 362, 730 S.W.2d 230, cert. denied 484 U.S. 917
(1987)(overwhelming evidence that appellant and his accomplices
intended to kill their victims in order to avoid identification,
apprehension, arrest and conviction for the robbery where they
fatally shot a store customer during the robbery and wounded
several other people as they lay helplessly on the floor; one of
the surviving victims testified that after appellant was told there
was no place in the store in which the victims could be locked up,
the robbers commented that they would have to "do away" with the
victims because "if they get loose they'll burn us"); Hill v.
State, 278 Ark. 194, 644 S.W.2d 282 (1983)(the jury was justified
in finding that petitioner shot victims Teague and Ward to increase
his chances of avoiding arrest after he had robbed Ward's service
station); Miller v. State, supra (sufficient evidence that
appellant killed the deceased to eliminate a witness and thus
hopefully avoid arrest for robbery where he confessed that
immediately prior to the shooting, thoughts of being identified by
the victim ran through his mind, and no evidence was discovered to
corroborate appellant's explanation that he shot the victim because
the latter reached for an iron pipe). In at least one case, the
victim had knowledge regarding an offense not committed in
connection with the murder. Sheridan v. State, supra (overwhelming
evidence that appellant killed the victim because she had informed
narcotics agents that he was involved in drugs).
The Attorney General asserts that, based on Bill Stuckey's
testimony, the jury could have inferred that appellant returned to
Helton's trailer for the purpose of retrieving his girlfriend,
Becky Mahoney, and that he shot and killed the four victims at
issue in order to prevent them from having him arrested if he used
force to remove Mahoney from the trailer. To accept the State's
argument would require an exercise in speculation as to appellant's
motive, and is contrary to Stuckey's testimony during the penalty
phase:
DEPUTY PROSECUTOR: Did he tell you who he shot?
WITNESS: Yes ma'am.
DEPUTY PROSECUTOR: Whom did he shoot?
WITNESS: Wayne and Sonny and Cheryl and some guy that he
didn't know.
DEPUTY PROSECUTOR: Okay. Specifically with reference to
the guy he didn't know, did he make any comments about
that particular person?
WITNESS: Yeah. He said that he was in the wrong place
at the wrong time.
DEPUTY PROSECUTOR: Did he give you any particular reason
for shooting these people?
WITNESS: Yes.
DEPUTY PROSECUTOR: What was that?
WITNESS: That they had run him off and kept Becky and
wouldn't let him take Becky with him.
DEPUTY PROSECUTOR: Was he looking for Becky?
WITNESS: Yes.
In addition to the quoted passage, our review of the record reveals
no testimony at trial, from Stuckey, Mahoney, or any other witness,
that appellant made any attempt to forcibly remove Mahoney from the
trailer, or that he shot and killed the four victims in order to
prevent them from having him arrested if he used force to remove
Mahoney from the trailer. Moreover, the State's argument contains
an obvious flaw -- the appellant never used force to remove Mahoney
from the trailer; thus, the killings could not have been committed
to avoid being arrested for an offense that did not occur. To
accept the State's argument would be to ignore the evidence of
appellant's motive that is in the record -- that appellant killed
the victims because they had run him off and kept Mahoney and would
not let him take Mahoney with him.
However, with respect to victim Richard Falls, the jury could
take into account Stuckey's testimony that appellant had stated to
him that Falls was "in the wrong place at the wrong time." In
light of this evidence, the jury could have inferred that appellant
killed Falls, a person he did not know, for no logical reason such
as revenge or accident. See Miller v. State, supra. Thus, while
we conclude that there was insufficient evidence to support the
submission of the "avoiding arrest" aggravating circumstance to the
jury on the counts relating to Wayne Helton, Cheryl Phegley, and
Robert Phegley, we find no error in the submission of this
aggravator on the count relating to victim Falls.
We can perform the statutory harmless-error analysis in the
penalty phase only if jury found no mitigating circumstances.
Greene v. State, 317 Ark. 350, 878 S.W.2d 384 (1994); Ark. Code
Ann. 5-4-603 (d)(Repl. 1993). Here, the jury unanimously found
two mitigating circumstances on each count: (1) Appellant grew up
in an environment of abuse and alcoholism; and (2) Appellant grew
up in an environment where his father provided an example of
extreme violent reactions to situations. Thus, we must reverse for
resentencing the death sentences on the counts relating to Wayne
Helton, Cheryl Phegley, and Robert Phegley.
Victim impact statute
We discuss appellant's remaining penalty-phase arguments
should they arise upon remand. Appellant challenges Arkansas's
victim-impact statute, codified at Ark. Code Ann. 5-4-
602(4)(Repl. 1993), as being void-for-vagueness. Particularly,
appellant claims that this statute fails to define who is a
"victim." This statute provides in pertinent part as follows:
In determining sentence, evidence may be presented
as to any matters relating to aggravating circumstances
enumerated in 5-4-604, any mitigating circumstances, or
any other matter relevant to punishment, including, but
not limited to, victim impact evidence, provided that the
defendant and the state are accorded an opportunity to
rebut such evidence. (emphasis added).
Recently, we rejected a similar vagueness challenge to this
provision in Nooner v. State, supra, stating as follows:
The United States Supreme Court permits the States
to authorize victim impact testimony. Payne v.
Tennessee, 501 U.S. 808 (1991). The Court referred
specifically to who might qualify as being impacted by a
victim's death and to the State's legitimate interest in
counteracting the defendant's mitigating evidence and in
reminding the jury that the victim was a person "whose
death represents a unique loss to society and in
particular to his family." 501 U.S. at 825. Thus, the
testimony may range from the victim's family to those
close to that person who were profoundly impacted by his
death. In the case before us, only [the victim's mother]
gave impact testimony. We decline to hold Act 1089 of
1993 to be impermissibly vague.
That our victim-impact statute is not void-for-vagueness only
resolves part of appellant's argument. He further contends that,
because there is no place in the Arkansas statutory weighing
process for the jury to consider victim-impact evidence, our
victim-impact statute is violative of the Eighth and Fourteenth
Amendments to the United States Constitution and Ark. Const. art.
2, 9. Particularly, appellant contends that the victim-impact
statute conflicts with Ark. Code Ann. 5-4-603 and -604 (Repl.
1993), which direct the jury to determine whether aggravating
circumstances exist, to weigh any aggravating circumstances against
any mitigating circumstances, and to determine whether the
aggravating circumstances justify a death sentence beyond a
reasonable doubt. Again, we find appellant's argument
unpersuasive.
In our decision in Nooner, we alluded to "the State's
legitimate interest in counteracting the defendant's mitigating
evidence." Id. at 109, citing Payne, 501 U.S. at 825. As the
United States Supreme Court recognized in Payne, "there is nothing
unfair about allowing the jury to bear in mind [the specific harm
caused by the defendant] at the same time it considers the
mitigating evidence introduced by the defendant." 501 U.S. at 826.
The Court recognized that a misreading of Booth v. Maryland, 482 U.S. 496 (1987), had "unfairly weighted the scales in a capital
trial," as there are "virtually no limits placed on the relevant
mitigating evidence a capital defendant may introduce concerning
his own circumstances." 501 U.S. at 822, citing Mills v. Maryland,
486 U.S. 367, 397 (1988)(Rehnquist, C.J., dissenting). As such,
the Court held that "a State may legitimately conclude that
evidence about the victim and about the impact of the murder on the
victim's family is relevant to the jury's decision as to whether or
not the death penalty should be imposed." 501 U.S. at 827.
Regarding appellant's Eighth Amendment claim, the United
States Supreme Court has held that "[a] capital sentencer need not
be instructed how to weigh any particular fact in the capital
sentencing decision." Tuilaepa v. California, ___ U.S. ___
(1994)(sl. op. at 12). In so holding, the Court recognized that a
contrary rule
would force the States to adopt a kind of mandatory
sentencing scheme requiring a jury to sentence a
defendant to death if it found, for example, a certain
kind or number of facts, or found more statutory
aggravating factors than mitigating factors. The States
are not required to conduct the capital sentencing
process in that fashion.
Id. at 13, citing Gregg v. Georgia, 482 U.S. 153, 199-200, n.50.
Appellant also asserts that the victim impact statute violates
Art. 2, 9, of the Arkansas Constitution, yet he has failed to
present us with any argument showing us why we should interpret
this provision in manner contrary to that of the Eighth Amendment
to the United States Constitution. See, e.g., Diffee v. State, 319
Ark. 669, 894 S.W.2d 564 (1995); Ridenhour v. State, 305 Ark. 90,
805 S.W.2d 639 (1991).
While the Eighth Amendment erects no per se bar to the
introduction of victim impact testimony, this rule is not without
limits. When evidence is introduced that is so unduly prejudicial
that it renders the trial fundamentally unfair, the Due Process
clause of the Fourteenth Amendment provides a mechanism for relief.
Payne, 501 U.S. at 825; Darden v. Wainwight, 477 U.S. 168, 179-183
(1986). After reviewing the victim impact evidence presented in
this case, we conclude that this line was not crossed here.
Initially, we note that there was no victim impact testimony
offered at trial pertaining to victim Helton. Roberta Sullivan and
Jerri Fletcher, sisters of Robert Phegley, both testified as to the
loss they felt after their brother's death. Particularly, Roberta
described her brother as "her best friend." She further described
Cheryl as more like a daughter than a niece, as Cheryl had lived
with her from age three to age fourteen. Jerri testified that she
was angry over her brother's death and that he and Cheryl were a
"duo" in the family. Since Jerri lived in Mississippi, she
described her loss as "not a day-to-day thing [like] what the other
sisters feel." Rhonda Darby, Robert's daughter and Cheryl's
sister, testified that while she has never been really close to
Cheryl, she was just starting to get close with her father again
prior to his death. A high school senior at the time of the
incident, Rhonda stated her grades fell and she quit basketball.
As she was to be married in three weeks, she would be denied the
privilege of having her father escort her down the aisle.
Kelly and Kerri Falls, sisters of Richard Falls, testified
that they were very close to their brother. As Kelly was the first
person in her family notified of her brother's death, she
experienced difficulty in having to inform her other family
members. According to Kelly, her family experienced disbelief and
anger and was "torn apart." Kerri used to see her brother every
day, and her three-year-old son did not understand his uncle's
death. We cannot say that this testimony was so unduly prejudicial
that it rendered appellant's trial fundamentally unfair; thus, we
reject his argument.
Jury's ability to show mercy
Appellant contends that the trial court erred in refusing to
give to the jury his proffered penalty-phase instruction, which
reads as follows:
Whatever the jury finds regarding aggravating and
mitigating circumstances, the jury may still return a
verdict of life imprisonment without parole.
We have held that AMCI2d Form Three, Section (C) permits the jury
to show mercy, as it allows the jury to find that the aggravating
circumstances do not justify a sentence of death. Dansby v. State,
supra. Non-model instructions are to given only when the trial
court finds that the model instructions do not accurately state the
law or do not contain a necessary instruction on the subject. Hill
v. State, 318 Ark. 408, 887 S.W.2d 275 (1994); Misskelley v. State,
supra. Thus, we conclude that it was not error to refuse the
appellant's proffered instruction.
Proffered verdict form
Kemp asserts that the trial court erred in refusing his
proffered instruction, a modification of AMCI 2d Form 3, which
states as follows:
You are instructed that in consideration of
mitigating circumstances each juror is to make his or her
own weighing of aggravating circumstances with the
mitigating circumstances that he or she has personally
found, and is not restricted to those unanimously found
by the jury.
The trial court denied appellant's proffer, and instructed the jury
with AMCI2d Form 3, which includes the following:
(b) (____) The aggravating circumstances outweigh beyond
a reasonable doubt any mitigating circumstances found by
any juror to exist.
Relying on Mills v. Maryland, supra, appellant asserts that Form
Three is violative of the Eighth Amendment because it is phrased in
such a way so as to inform each juror that he or she could not
consider evidence of a mitigating circumstance unless all other
jurors unanimously agreed that the evidence supported the finding
of the mitigating circumstance. We recently rejected this argument
in Bowen v. State, supra:
This same argument was made in Pickens v. State, 301
Ark. 244, 783 S.W.2d 341 (1990), on the basis of a
Maryland case. We decided the argument lacked merit. We
wrote:
Our Form 2, which accompanies AMCI 1509, expressly
allows the jury to list mitigating circumstances which
were found by some, though not all, of its members. Form
3 then allows the jury to determine if the aggravating
circumstances outweigh any mitigating circumstances.
Nothing in the forms indicates to the jury that a
mitigating circumstance must be found unanimously before
it may be considered in the weighing process. The
potential for misunderstanding is not present in the
Arkansas forms as it is in the Maryland forms.
322 Ark. 483 at 511.
In his reply brief, appellant maintains that this court's
decision in Willett v. State, 322 Ark. 613, 911 S.W.2d 937 (1995),
further demonstrates that his proposed instruction should have been
granted. However, in Willett, the jurors completed AMCI2d Form 2
in a contradictory manner, finding unanimously that three
circumstances were mitigators in one section of the form, while
indicating in another section that they had unanimously agreed that
the same three circumstances were not mitigating circumstances. No
such contradiction exists in this case.
Other penalty-phase objections
Appellant briefly submits three other points of error which he
alleges occurred during the penalty-phase. He asserts that the
trial court erred (1) in refusing his proffered modified version of
AMCI2d Form Three, which would inform the jury that they "may" but
were not required to give death even if all the interrogatories
were answered in the affirmative; and (2) in refusing to modify
Form Three to read, "[t]he aggravating circumstances, when weighed
against the mitigating circumstances, justify beyond a reasonable
doubt a sentence of death." He concedes that these two
assignments of error are likely foreclosed by the United States
Supreme Court's decision in Blystone v. Pennsylvania, 494 U.S. 299
(1990). We agree that they are.
Appellant further contends that the trial court erred in
refusing to strike the "risk of death to others" aggravating
circumstance, and asks us to overrule our decision in Cox v. State,
313 Ark. 184, 853 S.W.2d 266 (1993), in which we held that the
killing of more than one person "automatically" converts a case
into a death case because the "risk of death to others" aggravating
circumstance also covers actual deaths. We decline the invitation
to overrule our precedent.
The record has been examined in accordance with Arkansas
Supreme Court Rule 4-3(h), and it has been determined that there
were no errors with respect to rulings on objections or motions
prejudicial to the appellant not discussed above.
Affirmed in part; reversed and remanded in part.
Glaze, Corbin, and Brown, JJ., concur in part and dissent in
part. Associate Justice Robert L. Brown
April 22, 1996 *ADVREP1-A*
TIMOTHY WAYNE KEMP,
APPELLANT,
V.
STATE OF ARKANSAS,
APPELLEE,
CR 95-549
APPEAL FROM THE PULASKI COUNTY
CIRCUIT COURT,
NO. CR 93-2903,
HON. MARION HUMPHREY, JUDGE,
CONCURRING IN PART; DISSENTING
IN PART.
Robert L. Brown, Justice.
I agree with the majority that the death sentence relating to
the murder of Richard "Bubba" Falls must be affirmed, but I would
affirm the other death sentences as well.
The majority reverses because it discerns insufficient proof
of aggravating circumstances in this case. The two aggravators
found by the jury to outweigh mitigating factors are these:
(1) The capital murder was committed for the
purpose of avoiding or preventing an arrest.
(2) In the commission of the capital murder, Timothy
Wayne Kemp knowingly created a great risk of death to a
person other than the victim.
Under our statutes, aggravating circumstances must exist beyond a
reasonable doubt, and they must outweigh mitigating circumstances
beyond a reasonable doubt. Ark. Code Ann. 5-4-603 (Repl. 1993).
We have held that the finding of an erroneous aggravating
circumstance by the jury constitutes reversible error and grounds
for resentencing. Bowen v. State, 322 Ark. 483, 911 S.W.2d 555
(1995).
I have concluded that the jury reasonably could have decided
that Kemp killed all four victims to avoid arrest. The pivotal
testimony at trial on why Kemp committed the murders came from his
friend, Bill Stuckey:
He [Kemp] gave as a reason for shooting these people that
they had run him off and kept Becky and wouldn't let him
take Becky with him. He was looking for Becky.
So, armed with a .22 Ruger semi-automatic rifle, Kemp returned to
Wayne Helton's trailer to retrieve Becky Mahoney. It was obvious
in light of the semi-automatic rifle that he planned to take her
away by force, which is a crime. But he was confronted at the door
of the trailer by Helton and the others. The shooting ensued, and
all were killed except for Mahoney, who hid in a closet.
The majority engages in a metaphysical exercise when it
speculates on which of the victims died first and for what reason.
The evidence supports the jury's finding that Kemp returned to take
Mahoney away at gunpoint and that he murdered everyone who was in
his way. The truth of the matter is that all four people shot were
Kemp's victims and all four were eliminated as potential witnesses.
The number of gunshot wounds is instructive. Richard Falls, whose
murder the entire court agrees warrants the death penalty, was shot
only once, but Cheryl Phegley was shot five times, Robert Phegley
was shot twice, and Wayne Helton received four gunshot wounds to
the chest. Cheryl Phegley was chased down the hall and killed.
Wayne Helton had two close-range wounds that support the State's
theory that gunshots for the purpose of executing Helton were
fired. An elimination of witnesses under these facts is a more
than reasonable conclusion. Moreover, it is patently obvious that
opening fire with a semi-automatic weapon caused a risk of death to
others, thereby satisfying the second aggravating circumstance
which the jury found.
In my judgment, the jury was well within the bounds of
reasonable inference in concluding that the aggravators existed and
that they outweighed evidence of mitigating factors.
There is a second reason why reversal and remand for
resentencing involving three capital murder convictions is suspect.
To remand for resentencing on concurrent offenses seems something
of a bizarre exercise when one death sentence has been affirmed.
State v. Dawson, 1995 WL 411372 (Del. Super. June 9, 1995). Parole
eligibility will not be affected because the jury, on resentencing,
can only consider death or life without parole. Even if the
Governor eventually commuted an assessed death sentence, this would
not enhance parole eligibility because persons serving commuted
death sentences are not eligible for parole. Ark. Code Ann. 5-4-
607(c) (Repl. 1993). It could be argued that the possibility of
commutation by the Governor might be increased if only one death
sentence was involved as opposed to three or four. But that seems
exceedingly speculative since the Governor would have the full
array of the circumstances depicting Kemp's crime before him
regardless of whether one death sentence was at issue or more.
I respectfully dissent from that part of the majority opinion
which requires reversal and a remand for resentencing.
Glaze, J., joins. *ADVREP1-B
TIMOTHY WAYNE KEMP,
APPELLANT,
V.
STATE OF ARKANSAS,
APPELLEE.
CR95-549
Opinion Delivered: 4-22-96
DISSENTING IN PART
TOM GLAZE, Associate Justice
In my view, the majority opinion's reasoning is seriously
erroneous in finding, on the one hand, the state's evidence is
insufficient to support the "avoiding arrest" aggravating
circumstances given the jury for Kemp's murders of Wayne Helton,
Cheryl Phegley, and Robert Phegley, but at the same time, finding
the evidence sufficient to prove the "avoiding arrest" aggravating
circumstance for the murder of Richard Falls. Kemp killed all four
of these victims at the same time and place.
The majority opinion states the record shows that Kemp killed
Wayne Helton and the Phegleys, who had earlier "run Kemp off"
without letting him take his girlfriend, Mahoney. From the
evidence, the jury could have found this to be one reason why Kemp
killed these three victims, but the jury had every right to find
another reason for Kemp's having killed all four victims -- so no
witnesses would be left to identify him. In this respect, Kemp
stated that the other victim, Falls, was "in the wrong place at the
wrong time," which statement, I suggest, meant Kemp had returned to
murder everyone he found inside the trailer. The jury could have
reasonably concluded from Mahoney's testimony that Kemp killed
Falls first as Falls opened the trailer door; then, after killing
Falls, a man he did not personally know, Kemp obviously had no
intentions of leaving anyone found alive who could identify him.
Once Falls was murdered, Kemp's motive to rid the trailer of all
witnesses became self-evident. Whether Kemp had additional reasons
for killing some of the victims is irrelevant. By its reversal,
this court robs the jury of its factfinding responsibility.
Therefore, I respectfully dissent from the court's decision to
reverse and remand the matter for resentencing.
CORBIN and BROWN, JJ., join this dissent.
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