Kemp v. State

• Decision Date: 22 April 1996
• Docket Number: No. CR95-549,CR95-549
• Citation: 324 Ark. 178,919 S.W.2d 943
• Parties: Timothy Wayne KEMP, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 943

919 S.W.2d 943

324 Ark. 178

Timothy Wayne KEMP, Appellant, v. STATE of Arkansas, Appellee.

No. CR95-549.

Supreme Court of Arkansas.

April 22, 1996.

Jeff Rosenzweig, Judy Rudd, Little Rock, for appellant.

Clint Miller, Dep. Atty. General, Little Rock, for appellee.

JESSON, Chief Justice.

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, 913 S.W.2d 259, 261 (1996) 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...