Jenkins v. Commonwealth, 2019-SC-0252-MR

• Decision Date: 24 September 2020
• Docket Number: 2019-SC-0252-MR
• Citation: 607 S.W.3d 601
• Parties: Carlos Deandre JENKINS, Appellant v. COMMONWEALTH of Kentucky, Appellee
• Court: United States State Supreme Court — District of Kentucky

607 S.W.3d 601

Carlos Deandre JENKINS, Appellant

v.COMMONWEALTH of Kentucky, Appellee

2019-SC-0252-MR

Supreme Court of Kentucky.

SEPTEMBER 24, 2020

COUNSEL FOR APPELLANT: Robert Chung-Hua Yang, Assistant Public Advocate.

COUNSEL FOR APPELLEE: Daniel Jay Cameron, Attorney General of Kentucky, James Daryl Havey, Assistant Attorney General.

OPINION OF THE COURT BY JUSTICE WRIGHT

A Fayette Circuit Court jury convicted Appellant, Carlos Deandre Jenkins, of first-degree assault, eight counts of first-degree wanton endangerment, tampering with physical evidence, and of being a persistent felony offender (PFO). Jenkins was sentenced to life and fifty years, and now appeals to this Court as a matter of right. Ky. Const. § 110 (2)(b).

On appeal, Jenkins alleges the trial court erred by: (1) denying a missing evidence instruction, (2) admitting cell phone location evidence, and (3) failing to grant a directed verdict on the PFO charge.

For the following reasons, we affirm in part, reverse in part, and remand to the trial court for further proceedings consistent with this opinion. Specifically, we affirm Jenkins's felony convictions, reverse his second-degree PFO conviction, and remand for re-sentencing.

I. BACKGROUND

On the afternoon of June 12 and during the early morning hours of June 13, 2017, there were three separate shooting incidents in Lexington, Kentucky.

The first shooting happened during the afternoon of June 12 on Carneal Road.¹ There, Jenkins drove by Vincent Howard walking toward a vehicle and fired shots at him. The second shooting (also on Carneal Road) occurred at the residence of Summer Beatty, girlfriend of William Noland. Howard and Noland were friends and Beatty let Howard stay upstairs at her home. Howard was at the residence, but Noland was in jail when Jenkins drove up to Beatty's house and opened fire with two handguns. The third shooting ensued shortly after the shooting at Beatty's residence. Leading up to this final shooting, Jenkins backed into Asante Wardlaw's vehicle at a Thorntons gas station. Wardlaw gave chase to Jenkins's vehicle and got a license plate number. During the chase, Deondre Stokes, a passenger in Jenkins's car, fired shots at Wardlaw.

No one was seriously injured in the first and third shootings; however, during the second shooting, thirteen-year old Amaya Catching was shot in the back. The bullet entered Catching's back near the shoulder blade and lodged in her spine, leaving her permanently paralyzed below the spinal cord injury. Police arrested Jenkins and Stokes for the three shootings.

The Commonwealth's theory of the case was that Jenkins (who claimed Noland and Howard robbed him) sought revenge. Jenkins used two handguns, a Glock 26 9mm and a stolen Glock 43 9mm, during the shootings. Stokes was the Commonwealth's main witness against Jenkins. Stokes was with Jenkins during all three shootings and fired shots at Wardlaw. He accepted a plea deal to testify against Jenkins.

Stokes told police that Jenkins would "borrow" used cars from Lucas Hubbard, the general sales manager at the Chrysler of Lawrenceburg dealership. Jenkins used the vehicles from the time they arrived on the lot until they were entered in the dealership's computer as inventory. Hubbard allowed Jenkins to use the vehicles in exchange for drugs.

Witnesses described different vehicles at various shooting scenes. Early in the investigation, this made it difficult for police to connect the shootings to a single shooter. Jenkins drove a silver vehicle during the first shooting. Linda Riley, a neighbor, described seeing a silver, teardrop-shaped vehicle with a deep scratch on the front passenger door drive away after the first shooting incident. Stokes confirmed Jenkins was driving a silver car that afternoon and testified Jenkins fired the shots at Howard. After the shooting, Scott Gilfedder, a neighbor, recovered two shell casings and a side mirror cover from a silver car and turned those items over to a Lexington police officer.

Shortly after the first shooting, Jenkins swapped vehicles—this time getting a blue 2016 Nissan Versa Note hatchback. He drove the Nissan during the second and third shootings. According to Stokes, Jenkins drove that car to Beatty's residence after midnight the morning of July 13. Two of Beatty's neighbors described a blue vehicle leaving the scene the night of the shooting. When police showed the witnesses vehicle photos, they identified the blue Nissan.

Stokes said that Jenkins drove to Beatty's residence with two Glock handguns, one with a 32-round magazine and one with a seven-round magazine. According to Stokes, when he and Jenkins arrived at Beatty's residence shortly before 3:00 a.m., Jenkins stepped out of the vehicle and opened fire, emptying the magazines from both guns into the front of the house. One of those shots hit Catching while she slept on a couch in the front room. Police recovered thirty-five 9 mm shell casings at Beatty's residence.

Stokes told police that he and Jenkins threw shell casings out the window as they drove from Beatty's residence. Stokes claimed they were unable to dispose of one of the guns in a trashcan because of police cars in the area.

Shortly after leaving Beatty's residence, Jenkins stopped at a Thorntons gas station to buy cigarettes. Wardlaw was getting gas at the station during Jenkins's stop. As Jenkins was leaving, he backed into Wardlaw's car and did not stop. Wardlaw followed the car and saw it side-swipe another vehicle. During Wardlaw's pursuit Stokes fired shots at Wardlaw on Walden Avenue. Wardlaw called 911 and attempted to flee from the blue Nissan. When Wardlaw stopped at a traffic light, the blue Nissan came up behind him and Jenkins got out with a gun in his hand. No shots were fired at that point.

Wardlaw followed the 911 dispatcher's instructions and returned to the Thorntons gas station to meet with police. Later that day, a resident on Walden Drive near where Wardlaw said shots were fired, found three shell casings and turned them over to police. Stokes later confirmed Wardlaw's version of events to police.

When Jenkins attempted to return the Nissan to Hubbard, Hubbard would not accept the vehicle once he saw the damage to the car. When Jenkins and Stokes attempted to clean the vehicle with bleach, a suspicious neighbor, Michael McCoy, photographed them and called police. Officer Nally responded to the call. Nally testified that there was a strong smell of bleach and visible residue from a recent cleaning. Nally had the vehicle towed.

Lexington Police Detective Robert Wilson was assigned as lead detective for the Carneal Road shootings. During his investigation, Detective Wilson located Hubbard and obtained Jenkins's and Stokes's names from him. Once he had the names, Wilson tracked down two cell phone numbers used by Jenkins and Stokes and acquired historical cell phone reports from the two phone companies.

After Detective Wilson obtained the historical cell phone reports for Jenkins's and Stokes's cell phones, he gave that information to Lexington Police Sergeant Tyson Carroll, who specialized in electronic evidence. Sergeant Carroll mapped cell tower coordinates from the cell phone reports focusing on time periods surrounding the shootings. The towers identified in both cell phone reports were located close to Carneal Road.

Police recovered the Glock 43 9 mm pistol during their investigation but were unable to locate the Glock 26 9 mm. Eight spent casings from the late-night Carneal Road shooting matched the Glock 43. The remaining 27 shell casings (including the two casings recovered from the Howard shooting, the casings from the Beatty residence shooting, and the three casings recovered from Walden Drive) were fired from the same unknown gun and were consistent with having been fired from a Glock. Ten projectiles recovered from Beatty's residence had not been fired from the recovered Glock 43. However, those bullets did match the hammer forged rifling of a Glock 9 mm handgun.

At trial, the jury found Jenkins guilty of first-degree assault, eight counts of first-degree wanton endangerment, tampering with physical evidence, and found him to be a second-degree PFO. The jury recommended a life sentence plus consecutive terms of imprisonment for the remaining offenses. The trial court imposed a sentence of life and fifty years’ imprisonment to run concurrently.

II. ANALYSIS

A. Failure to Give Missing Evidence Instruction

Jenkins argues the trial court erred in denying his request for a missing evidence instruction for the pretrial destruction of three shell casings recovered by police from Walden Drive. Ballistics lab analysis matched those three casings with casings recovered by police on Carneal Road. The Lexington Police's Division of Property and Evidence destroyed the three shell casings on July 9, 2018.

Jenkins filed a motion to exclude evidence and testimony relating to the three shell casings. In that motion, Jenkins also included a request for a missing evidence instruction. At a hearing held on February 14, 2019, the trial court heard testimony from two witnesses, Michael Cook, Head of the Lexington Police Property and Evidence Division, and David Day, a retired Lexington police officer. The trial court overruled the motion to exclude any evidence about the three shell casings and ruled it would not provide the jury with the requested missing evidence instruction.

Although the trial court found the police had intentionally destroyed the shell casings, the trial court further found the police did not act in bad faith. Further finding the shell casings had no obvious exculpatory value, the trial court ruled there was no violation of Jenkins's due process rights. The trial court specifically relied on this Court's decision in Estep v. Commonwealth , 64 S.W.3d 805, 810 (Ky. 2002), in which we said: "absent some degree of ‘bad faith,’ the defendant is not entitled to an instruction that the jury may draw an adverse inference from that...