{ "id": 862749, "name": "Timothy Wayne KEMP v. STATE of Arkansas", "name_abbreviation": "Kemp v. State", "decision_date": "1998-11-19", "docket_number": "CR 98-463", "first_page": "139", "last_page": "145", "citations": [ { "type": "official", "cite": "335 Ark. 139" }, { "type": "parallel", "cite": "983 S.W.2d 383" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "906 S.W.2d 681", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1449582 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/321/0641-01" ] }, { "cite": "322 Ark. 483", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1447507 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/322/0483-01" ] }, { "cite": "317 Ark. 293", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1443828 ], "weight": 5, "year": 1994, "pin_cites": [ { "page": "297" } ], "opinion_index": 0, "case_paths": [ "/ark/317/0293-01" ] }, { "cite": "728 S.W.2d 653", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1987, "opinion_index": 0 }, { "cite": "291 Ark. 521", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1872655 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/ark/291/0521-01" ] }, { "cite": "307 Ark. 53", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1902405 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/ark/307/0053-01" ] }, { "cite": "317 Ark. 166", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1443778 ], "weight": 5, "year": 1994, "pin_cites": [ { "page": "170" }, { "page": "170" }, { "page": "208" } ], "opinion_index": 0, "case_paths": [ "/ark/317/0166-01" ] }, { "cite": "266 Ark. 556", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8720825 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "557" } ], "opinion_index": 0, "case_paths": [ "/ark/266/0556-01" ] }, { "cite": "209 S.W. 276", "category": "reporters:state_regional", "reporter": "S.W.", "weight": 2, "year": 1919, "opinion_index": 0 }, { "cite": "137 Ark. 331", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1568013 ], "year": 1919, "opinion_index": 0, "case_paths": [ "/ark/137/0331-01" ] }, { "cite": "278 Ark. 5", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1748365 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "7", "parenthetical": "citing Mayo v. Ark. Valley Trust Co., 137 Ark. 331, 209 S.W. 276 (1919)" }, { "parenthetical": "citing Mayo v. Ark. Valley Trust Co., 137 Ark. 331, 209 S.W. 276 (1919)" } ], "opinion_index": 0, "case_paths": [ "/ark/278/0005-01" ] }, { "cite": "322 Ark. 87", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1447576 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/322/0087-01" ] }, { "cite": "327 Ark. 692", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 922898 ], "weight": 2, "year": 1997, "opinion_index": 0, "case_paths": [ "/ark/327/0692-01" ] }, { "cite": "331 Ark. 79", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1604767 ], "weight": 2, "year": 1998, "opinion_index": 0, "case_paths": [ "/ark/331/0079-01" ] }, { "cite": "490 U.S. 805", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 605301 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/us/490/0805-01" ] }, { "cite": "482 U.S. 496", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6216766 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/us/482/0496-01" ] }, { "cite": "115 L. Ed. 2d 1110", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1991, "opinion_index": 0 }, { "cite": "112 S. Ct. 28", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1991, "opinion_index": 0 }, { "cite": "111 S. Ct. 2597", "category": "reporters:federal", "reporter": "S. Ct.", "case_ids": [ 1108176 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/us/501/0808-01" ] }, { "cite": "Ark. Code Ann. \u00a7 5-4-602", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1997, "pin_cites": [ { "page": "(4)" } ], "opinion_index": 0 }, { "cite": "324 Ark. 178", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 9159133 ], "weight": 7, "year": 1996, "pin_cites": [ { "page": "203-06" }, { "page": "206-07" } ], "opinion_index": 0, "case_paths": [ "/ark/324/0178-01" ] } ], "analysis": { "cardinality": 608, "char_count": 10501, "ocr_confidence": 0.747, "pagerank": { "raw": 2.666923145260413e-07, "percentile": 0.8254595152072572 }, "sha256": "87393df5b6c640a74be5718e8fd81191f3fbb548cc5327e3b0967a22ba89f475", "simhash": "1:39290216f38e13c0", "word_count": 1667 }, "last_updated": "2023-07-14T15:28:04.221219+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Timothy Wayne KEMP v. STATE of Arkansas" ], "opinions": [ { "text": "W.H. \u201cDub\u201d Arnold, Chief Justice.\nIn October of 1993, police found the bodies of David Wayne Helton, Robert \u201cSonny\u201d Phegley, Cheryl Phegley, and Richard \u201cBubba\u201d Falls in a trailer in Jacksonville, Arkansas. All four victims had been shot, and all but Falls had been shot more than once. Another victim, Becky Mahoney, was also shot but hid in a bedroom closet during the shootings and survived. Mahoney later identified her boyfriend, Timothy Wayne Kemp, as the perpetrator. In November of 1994, Kemp was convicted of four counts of capital murder and sentenced to death on each count. On appeal, this court affirmed all four convictions but reversed three of the death sentences, leaving one intact. Kemp v. State, 324 Ark. 178, 919 S.W.2d 943 (1996). Following a resentencing hearing in October of 1997, Kemp was again sentenced to the three death penalties. From these three sentences, Kemp brings the instant appeal challenging the admissibility of victim-impact evidence, the constitutionality of the victim-impact statute, and the applicability of the law-of-the-case doctrine. Our jurisdiction is authorized pursuant to Ark. Sup. Ct. Rule l-2(a)(2) (1998), because this is a criminal appeal involving the death penalty. We find no merit in appellant\u2019s arguments, and we hold that the law-of-the-case doctrine controls this case. Accordingly, we affirm the appellant\u2019s three death sentences.\nI. Constitutionality of the victim-impact statute and the law-of-the-case doctrine\nIn his first trial and appeal, Kemp challenged the constitutionality of Arkansas\u2019s victim-impact statute, Ark. Code Ann. \u00a7 5-4-602(4) (Repl. 1997). This court rejected his arguments and declared the statute constitutional. Kemp, 324 Ark. at 203-06. During Kemp\u2019s resentencing trial, he renewed his constitutional objections to the statute, and his motion was again rejected by the trial court. Victim-impact testimony was introduced at the resentencing hearing through two relatives of victims Robert Phegley and Cheryl Phegley. In the instant appeal from the three death sentences, Kemp reargues that the victim-impact statute is void for vagueness, facially and as applied, and is substantively and procedurally unconstitutional, pursuant to the Eighth and Fourteenth Amendments to the United States Constitution and Ark. Const, art. 2, \u00a7 8.\nArkansas\u2019s victim-impact statute provides, in part:\nIn determining sentence, evidence may be presented to the jury as to any matters relating to aggravating circumstances enumerated in \u00a7 5-4-604, or 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.\nFurther, the publisher\u2019s notes to section 5-4-602 indicate that the statute\u2019s enacting clause provided: \u201cIt is the express intention of this act to permit the prosecution to introduce victim impact evidence as permitted by the United States Supreme Court in Payne v. Tennessee, 111 S. Ct. 2597, 115 L. Ed. 2d 720, [reh\u2019g denied, 112 S. Ct. 28, 115 L. Ed. 2d 1110] (1991).\u201d\nIn Payne, the United States Supreme Court overruled the per se bar to victim-impact evidence, established in Booth v. Maryland, 482 U.S. 496 (1987) and South Carolina v. Gathers, 490 U.S. 805 (1989), and upheld a state\u2019s choice to permit the admission of victim-impact evidence and prosecutorial argument on that subject. Significantly, the Payne Court noted that:\nthe Eighth Amendment erects no per se bar. A State may legitimately conclude that evidence about the victim and about the impact of the murder on the victim\u2019s family is relevant to the jury\u2019s decision as to whether or not the death penalty should be imposed. There is no reason to treat such evidence differently than other relevant evidence is treated.\nPayne, 501 U.S. at 827.\nIn response to the appellant\u2019s renewed constitutional objections to Arkansas\u2019s victim-impact statute, the State contends that our review of these arguments is barred by the law-of-the-case doctrine. We agree. We also note that we have upheld the constitutionality of the victim-impact statute on many occasions. See Noel v. State, 331 Ark. 79, 960 S.W.2d 439 (1998); Lee v. State, 327 Ark. 692, 942 S.W.2d 231 (1997); Kemp v. State, 324 Ark. 178, 919 S.W.2d 943 (1996); Nooner v. State, 322 Ark. 87, 907 S.W.2d 677 (1995). However, because we considered and decided in Kemp\u2019s prior appeal the same constitutional arguments raised in the instant appeal, our prior decision with regard to those matters is binding in this subsequent appeal from the appellant\u2019s resentencing hearing.\nThe doctrine of the law of the case provides that the \u201cdecision of an appellate court establishes the law of the case for the trial upon remand and for the appellate court itself upon subsequent review.\u201d Washington v. State, 278 Ark. 5, 7, 643 S.W.2d 255 (1982) (citing Mayo v. Ark. Valley Trust Co., 137 Ark. 331, 209 S.W. 276 (1919)). Although we noted in Washington that the doctrine is not inflexible and does not absolutely preclude correction of error, id. (citing Ferguson v. Green, 266 Ark. 556, 557, 587 S.W.2d 18 (1979)), we have also held that the doctrine prevents an issue raised in a prior appeal from being raised in a subsequent appeal \u201cunless the evidence materially varies between the two appeals.\u201d Fairchild v. Norris, 317 Ark. 166, 170, 876 S.W.2d 588 (1994). We adhere to this doctrine to preserve consistency and to avoid reconsideration of matters previously decided. Id. Significantly, the doctrine extends to issues of constitutional law. Id.; Findley v. State, 307 Ark. 53, 818 S.W.2d 242 (1991).\nHere, there is neither an allegation for correction of an error nor of evidence that materially varies from the prior appeal. Kemp merely reargues the merits of his former constitutional challenges to the victim-impact statute. Kemp\u2019s argument that the statute is void for vagueness and is unconstitutional, substantively and procedurally, facially and as applied, was addressed and rejected by this court in his prior appeal. Likewise, we considered and rejected Kemp\u2019s argument that the statute violates due process and the protection against cruel and unusual punishment because it does not give sufficient guidance to the jury and judge about how to consider such evidence. Pursuant to the law-of-the-case doctrine, we hold that the appellant\u2019s arguments provide no basis for relief in the instant appeal.\nII. Other issues\nOn appeal, Kemp also discusses several issues that he raised at the resentencing trial and that were adversely ruled upon by the trial court, including a ruling authorizing the appellant\u2019s shackling at trial, overruled voir dire objections, a proffered but rejected jury instruction on mercy, a denied directed-verdict motion, and other preserved guilt-phase claims. First, Kemp acknowledges that although the trial court authorized his shackling during the trial, Kemp was never actually shackled. Given the lack of prejudice, the issue is moot. Second, Kemp raised some objections during jury voir dire but admits that he did not exhaust his peremptory challenges and announced that his jury was satisfactory. Similarly, this point is moot.\nThird, Kemp contests the trial court\u2019s rulings on several objections previously considered and rejected by this court in Kemp\u2019s prior appeal. For example, the trial court overruled Kemp\u2019s proposed jury instruction, based upon the authority of Duncan v. State, 291 Ark. 521, 728 S.W.2d 653 (1987), permitting the jury to show mercy. This court considered and rejected this argument in the prior appeal, and the law-of-the-case doctrine controls. See Kemp, 324 Ark. at 206-07; Fairchild, 317 Ark. at 170. Accordingly, we will not revisit this point in the instant appeal. Likewise, we decline to consider Kemp\u2019s objection to the admission of autopsy photographs previously introduced at the original trial and whose introduction this court affirmed in his prior appeal. Notably, Kemp also concedes that the resentencing statute permits the photographs\u2019 reintroduction. Similarly, Kemp again objects to the sufficiency of the aggravator concerning \u201crisk of death.\u201d We rejected this argument in the prior appeal, and the law-of-the-case doctrine controls. See id. at 208.\nFourth, Kemp moved for a mistrial based upon the prosecuting attorney\u2019s expression of opinion during closing argument. Specifically, the appellant objected to the prosecutor\u2019s remark: \u201cAnd I think that is one of the most telling things about this defendant.\u201d Although the trial court denied the motion for mistrial, he granted the request for an admonition to the jury. Kemp also objected to the prosecutor\u2019s statement: \u201cSo I know that when you go back with these forms and you check . . . .\u201d The trial court again overruled appellant\u2019s objection.\nThis court has long held that a mistrial is an extreme remedy that is rarely granted and only when an error is so prejudicial that justice cannot be served by continuing the trial. A mistrial should only be ordered when the fundamental fairness of the trial itself has been manifestly affected. Kemp, 324 Ark. at 198 (citing King v. State, 317 Ark. 293, 297, 877 S.W.2d 583 (1994)). Moreover, the trial court has wide discretion in granting or denying a motion for mistrial. Except where there is an abuse of discretion or manifest prejudice to the complaining party, we will not disturb the trial court\u2019s discretion. Id. Generally, an admonition to the jury cures a prejudicial statement unless it is so \u201cpatently inflammatory\u201d that justice could not be served by continuing the trial. Id. Significantly, we noted in Kemp that attorneys are given leeway in closing remarks. Id. (citing Bowen v. State, 322 Ark. 483, 906 S.W.2d 681 (1995)). Here, we conclude that the prosecutor\u2019s comments were harmless, and, in any event, the trial court\u2019s admonition to the jury cured any prejudice.\nIII. Rule 4-3 (h)\nIn accordance with Ark. Sup. Ct. Rule 4-3(h), the record has been reviewed for adverse rulings objected to by appellant but not argued on appeal, and no reversible errors were found. In bght of the foregoing, we affirm the appellant\u2019s three death sentences.\nAffirmed.", "type": "majority", "author": "W.H. \u201cDub\u201d Arnold, Chief Justice." } ], "attorneys": [ "Jeff Rosenzweig, for appellant.", "Winston Bryant, Att\u2019y Gen., by: Todd L. Newton, Asst. Att\u2019y Gen. and Kelly K. Hill, Deputy Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Timothy Wayne KEMP v. STATE of Arkansas\nCR 98-463\n983 S.W.2d 383\nSupreme Court of Arkansas\nOpinion delivered November 19, 1998\nJeff Rosenzweig, for appellant.\nWinston Bryant, Att\u2019y Gen., by: Todd L. Newton, Asst. Att\u2019y Gen. and Kelly K. Hill, Deputy Att\u2019y Gen., for appellee." }, "file_name": "0139-01", "first_page_order": 159, "last_page_order": 165 }