# Kemp v. State > Supreme Court of Arkansas · April 22, 1996 · 324 Ark. 178 URL: https://www.frixlaw.com/law-library/cases/9777501 ## Case - **Full name:** Timothy Wayne KEMP v. STATE of Arkansas - **Court:** Supreme Court of Arkansas - **Decided:** April 22, 1996 - **Citations:** 324 Ark. 178; 919 S.W.2d 943; 1996 Ark. LEXIS 242 - **Precedential status:** Published - **Opinion:** Concurring in part by Brown - **Judges:** Bradley, Jesson, Glaze, Corbin, Brown - **Cited by:** 64 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9777501 ## How later opinions describe it (automated extraction) - discussing the testimony of the relatives of two of the three murder victims ## Opinion text ROBERT L. Brown, Justice, concurring in part; dissenting in part. 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. 1 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 resen-tencing 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 foil 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. There appears to be a discrepancy over the number of death sentences. The judgment and commitment order filed December 5, 1994, shows three capital murder convictions. The parties, however, agree that there were four murders, and the evidence and verdict forms substantiate that fact. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9777501. Public record. Not legal advice.