State v. Jenkins, No. 118,120

455 P.3d 779

STATE of Kansas, Appellee,

v.Sherman Norman JENKINS, Appellant.

No. 118,120

Supreme Court of Kansas.

Opinion filed January 10, 2020

Korey A. Kaul, of Kansas Appellate Defender Office, argued the cause, and was on the brief for appellant.

Steven J. Obermeier, assistant solicitor general, argued the cause, and Derek Schmidt, attorney general, was with him on the brief for appellee.

The opinion of the court was delivered by Beier, J.:

Sherman Norman Jenkins led police on two separate vehicle chases in one night. The second chase ended in a fatal crash. A jury convicted Jenkins of first-degree felony murder, two counts of aggravated battery, two counts of felony fleeing and eluding police, one count of theft, one count of driving without tail lamps, and one count of driving while suspended.

Jenkins directly appeals his convictions to this court, raising two arguments. First, he argues that the district court judge erred by admitting as evidence recorded jail calls made using Jenkins' assigned personal identification number. We hold that the calls were properly admitted.

Second, Jenkins challenges the constitutionality of one of the options within a means of the felony fleeing and eluding statute. We reject his contention that the provision is unconstitutionally vague.

We therefore affirm.

FACTUAL AND PROCEDURAL HISTORY

During the early morning hours of February 4, 2016, Topeka-area law enforcement participated in two different vehicle pursuits.

The first pursuit involved a minivan and began shortly before 3 a.m. The van drove eastbound on Interstate 70 from Topeka and did not pull over, despite a law enforcement officer's use of lights and sirens. After the van accelerated to 90 miles per hour, the pursuit was called off. A different officer reinitiated pursuit after he observed the van make a U-turn at the I-70 toll plaza parking lot and return westbound toward Topeka. During this pursuit, the van's driver ran a red light, twice failed to signal before exiting, and failed to stop at three stop signs. The pursuit ended in North Topeka, where the van went off-road and crashed. Law enforcement did not find the van's driver at the scene of the crash but did find a female passenger in the van.

The second chase was set in motion a little after 4 a.m., when Craig Droge realized that someone had stolen his friend Donella Davidson's pickup from outside his home in North Topeka.

About an hour later, Officer Kurtis VanDonge noticed a pickup driving in North Topeka with nonoperational taillights. He followed the pickup and activated his lights, then his siren, and eventually his public announcement system. Despite this, the pickup's driver did not pull over. VanDonge's bodycam recorded the ensuing pursuit, which took a circuitous route through North Topeka before crossing the Kansas Avenue bridge into downtown Topeka.

During this pursuit, the pickup's driver committed numerous moving violations. He twice turned into an incorrect lane, three times failed to maintain a single lane, drove on the left side of a two-way street, three times failed to come to a complete stop at a stop sign, and turned left through a red light. The driver also maneuvered around at least one set of stop sticks placed in the road by law enforcement. The pursuit ended when the pickup ran a red light at the intersection of Sixth Street and Topeka Boulevard and hit two cars. The crash injured Danny Williams Jr. and Benjamin Falley, the drivers of the two cars. It killed Mia Holden, a passenger in Falley's car.

Immediately after the crash, police officers removed the driver and only occupant from the pickup. This person was later identified as defendant Jenkins. Jenkins was taken to the hospital, then moved to the Shawnee County Jail.

The State charged Jenkins with first-degree felony murder, felony fleeing and eluding, theft, two counts of aggravated battery, driving without taillights, and driving with a suspended license.

At the jail, Jenkins was assigned a unique personal identification number (PIN) to be used to make outgoing calls on the jail's Securus telephone system. Jenkins' PIN was used to make six calls on February 5, 2016.

A detective listened to recordings of these calls. There were two primary speakers, one male and one female. The male speaker on the calls discussed not only the pickup chase and fatal crash, but also the earlier van chase. As a result, the State charged Jenkins with a second count of felony fleeing and eluding for the van chase.

At trial multiple law enforcement officers detailed their involvement with the chases and subsequent investigation. Officers Josh Miller and Joshua Franco described their pursuit of the van and the multiple moving violations they witnessed. The State played VanDonge's bodycam footage of the pursuit of the pickup while VanDonge narrated, explaining each moving violation he witnessed as it appeared onscreen.

Lieutenant Matt Biltoft from the Shawnee County Department of Corrections testified about the Securus software system. He said that each inmate is assigned a unique PIN when admitted to the jail. Inmates must use a PIN to make an outgoing call. The Securus software system records each outgoing call. Biltoft, as a Securus operator, can search the system using an inmate's name or PIN and identify all outgoing calls made with the inmate's PIN. When Biltoft searched the Securus system for all calls made with Jenkins' assigned PIN, he found six calls made using Jenkins' PIN on February 5, 2016. He listened to the calls and noted that "it was all similar information." Biltoft said that he did not know Jenkins' voice from any previous interactions and that he did not know who the other speakers on the calls were.

The State moved to introduce recordings of five calls into evidence. Jenkins objected; he argued that the State failed to sufficiently identify him as the male speaker on the calls. The district judge ruled that the State sufficiently established the identities of the speakers and overruled Jenkins' objection. The district judge stated:

"[T]he circumstances and the nature of the recordings themselves identifies the authenticity and the identity of Mr. Jenkins speaking because this is the day after the fatality crash and there are statements made by Mr. Jenkins recognizing that he had been in that collision and that he had killed a woman in that collision.

"So circumstantially, the odds that another person on the 5th of February calls up his girlfriend and confesses to being in a high-speed pursuit the night before in which a woman was killed is highly unlikely to the point where there's sufficient basis now for the Court to say this is an authentic copy of those jail calls."

The State published the calls during Detective Jesse Sherer's testimony. Sherer said that during the six phone calls Jenkins made to a woman referred to as "Connie," Jenkins "accurately speaks about the facts of both chases that occurred in the morning of February 4th, including the types of vehicles that were involved, the general locations of where those chases occurred, how they occurred," and even "mentions stealing a truck and that it was involved in an accident at the location of the Sixth and Topeka accident." Sherer also testified that in one call Jenkins admitted fleeing on foot from the location of the van crash. In addition, Sherer said, according to Department of Motor Vehicle records, Jenkins' driver's license was revoked at the time of the two pursuits.

Officer Ross Gustafson testified that the Vehicle Identification Number on the pickup identified it as belonging to Davidson. And the Shawnee County coroner testified that Holden died from several lethal injuries caused by the crash.

Jenkins did not put on any evidence.

The district judge gave the jury two separate fleeing and eluding instructions, one for each charge. In the first instruction—pertaining to the pickup pursuit—the district judge instructed the jury about four possible options within a means by which Jenkins may have committed felony fleeing and eluding: driving around a tire deflating device placed by a police officer ( K.S.A. 2015 Supp. 8-1568 [b][1][B] ); engaging in reckless driving ( K.S.A. 2015 Supp. 8-1568 [b][1][C] ); involvement in a motor vehicle accident ( K.S.A. 2015 Supp. 8-1568 [b][1][D] ); and committing five or more moving violations ( K.S.A. 2015 Supp. 8-1568 [b][1][E] ). This instruction also defined "reckless driving." In the second fleeing and eluding instruction—pertaining to the van pursuit—the district judge listed only one option within a means: committing five or more moving violations.

The district judge also instructed the jury about the definition of "moving violations," taking language from K.A.R. 92-52-9(a). The instruction said that "moving violations" included:

• Driving with a suspended, canceled, or revoked license. ( K.S.A. 8-262 )

• Failing to stop at a stop sign. ( K.S.A. 8-1528 [b] )

• Failing to stop at a red light. ( K.S.A. 8-1508 [c] )

• Failing to maintain a single lane. ( K.S.A. 8-1522 [a] )

• Driving in the left lane while approaching a hill, curve, intersection, or railroad grade crossing. ( K.S.A. 8-1519 )

• Making an unsafe turn or lane change. ( K.S.A. 8-1548 )

• Turning into the incorrect lane. ( K.S.A. 8-1545 )

• Failing to signal a turn or lane change. ( K.S.A. 8-1548 )

During the portion of its closing addressing fleeing and eluding, the State addressed only the pickup pursuit and not the van pursuit. The State argued that Jenkins committed eight moving violations during the pickup chase: driving with a revoked license, failing to stop at a stop sign, failing to stop at a red light, failing to maintain a single lane, driving on the wrong side of the road, failing to signal a turn, making an improper turn, and failing to signal another turn or lane change. The State directed the jury to VanDonge's bodycam footage and testimony as evidence of these violations.

The jury found Jenkins guilty on all eight counts. The...