Jenkins v. State

• Decision Date: 28 February 1992
• Docket Number: CR-90-1044
• Citation: 627 So.2d 1034
• Parties: Mark Allen JENKINS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1034

627 So.2d 1034

Mark Allen JENKINS v. STATE.

CR-90-1044.

Court of Criminal Appeals of Alabama.

Feb. 28, 1992.

Rehearing Denied April 17, 1992.

Douglas Scofield, Birmingham, for appellant.

James H. Evans, Atty. Gen., and Robert Lusk, Jr. and Sandra Stewart, Asst. Attys. Gen., for appellee.

TAYLOR, Judge.

The appellant, Mark Allen Jenkins, was convicted of murder made capital because it was committed during the course of a robbery and a kidnapping. See §§ 13A-5-40(a)(2) and 13A-5-40(a)(1), Code of Alabama 1975. The jury, voting 10 to 2, recommended death. The trial court accepted the jury's recommendation and sentenced the appellant to death by electrocution.

The appellant raises numerous issues both in his original brief and in his reply brief. However, some of the issues raised by the appellant on appeal were not preserved because no objection was made at trial. In any case involving the death penalty, this failure to object operates as a bar to our review, unless the error rises to a level referred to as "plain error." See Luther Williams v. State, 601 So.2d 1062 (Ala.Cr.App.1991); Arthur v. State, 575 So.2d 1165 (Ala.Cr.App.1990), writ denied, 575 So.2d 1191 (Ala.1991). Rule 45A, A.R.App.P., states, "In all cases in which the death penalty has been imposed, the Court of Criminal Appeals shall notice any plain error or defect in the proceedings under review ... whenever such error has or probably has adversely affected the substantial right of the appellant." "[T]he plain-error exception to the contemporaneous-objection rule is to be 'used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result.' " United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1 (1985), quoting United States v. Frady, 456 U.S. 152, 163, 102 S.Ct. 1584, 1592, 71 L.Ed.2d 816 (1982).

I

The appellant initially contends that there was insufficient evidence to find him guilty of murder during the course of a robbery and kidnapping.

The state's evidence tended to show that in the late afternoon of April 21, 1989, the nude body of an unidentified female was found on an embankment on the side of interstate highway 59 south near Pelham, Alabama. The body was badly decomposed and was later identified by dental records as Tammy Hogeland. The cause of death was manual strangulation. The victim's hyoidal bone was fractured which is consistent with a manual strangulation as opposed to other types of strangulation.

Several items of clothing were recovered from the scene: a ladies watch, a blue apron, a pair of ladies white tennis shoes, a brassiere, a pair of black slacks, and a hair net. Other items found at the scene were an owner's manual for a Mazda RX7 automobile, a fraternity card, photographs, a cable TV guide, a road map, a work order for repair on a Mazda automobile, and several beer and soft drink cans.

Tammy Hogeland was last seen in the early morning hours of April 18, 1989, at the Airport Omelet Shoppe restaurant in Birmingham where she was working. She was scheduled to work that evening at the Riverchase Omelet Shoppe, but when an employee did not come to work at the Airport Omelet Shoppe, she was asked to work there. Her sister, Wendy Hogeland, and her sister's boyfriend drove the appellant to the Airport Omelet Shoppe at around 10:00 p.m. on the evening of April 17. Wendy Hogeland testified at trial that Tammy at that time had on her jewelry, which included a Citizens brand watch, a necklace with the words "special sister," a class ring with a topaz stone, and a diamond cluster engagement ring. That evening the victim was working as a cook, and she was wearing a blue apron, black pants, a white shirt, and a pair of white shoes. Early in the morning of April 18, the victim and Sarah Harris were the only employees working at the Airport Omelet Shoppe. At about 2:00 a.m. Sarah Harris observed a red sports car ¹ being driven into the parking lot. She stated that she remembered the car because it almost jumped the curb and came through the glass wall of the restaurant. Harris identified the appellant, Mark Allen Jenkins, as the individual driving the car and stated that he appeared to be intoxicated when he came to the Omelet Shoppe. The appellant walked over to the victim and began talking to her. Harris saw the victim and the appellant drive off in the red sports car. She could not testify at trial whether the victim went willingly or was abducted. Testimony did reveal that the victim was a heavy smoker and that she left behind her cigarettes, her lighter, her purse, and her paycheck, which had been issued that evening. Harris had also worked with the victim on several occasions and said that she had never before left the shop without telling anyone as she did that evening.

Later, at around 5:00 a.m. on the morning of April 18, Geraldine and Bobby Coe were at a Chevron gasoline service station on I-59, when they saw an individual in a red sports car. They identified the individual in the car as appellant Jenkins. They also stated that a female was in the front passenger seat of the car and that she appeared to be "passed out." They could not say whether she was alive or dead. While Bobby Coe was pumping gas, the appellant approached him and asked him for some cigarettes. Coe gave the appellant some cigarettes, and the appellant said, "looks like it's been a long night and it looks like it's going to be a long day." The appellant then told Coe, "God bless you," and as he was walking back to the red sports car he asked Coe how to get to interstate highway 459. Coe gave him directions. They both got into their respective vehicles and left the station. The Coes, each driving a different car, drove out of the gas station. Bobby Coe stated that he saw the car driven by the appellant follow him for awhile, flash his lights, slow down, and then pull to the side of the road between mile markers 151 and 152. This is the area where Tammy Hogeland's body was found approximately three days later.

By agreement, a statement made by Christine Nicholas was received into evidence. Nicholas told police that she had known the appellant for several months and that she had met him at the Omelet Shoppe where she worked. She further stated that the appellant was at her home on the evening of April 17 and that he stayed at her home until approximately 2:00 a.m. on the morning of April 18. She stated that the appellant was very intoxicated and that he was attempting to seduce her. She resisted and the appellant got "real mad" and asked her several times what she would do if someone came up from behind her and grabbed her. At approximately 1:00 a.m., the appellant and Nicholas went to the Riverchase Omelet Shoppe. The appellant went inside the Omelet Shoppe and talked with one of the waitresses. Shortly after this, the appellant and Nicholas returned to her home, and the appellant fell asleep on the couch. Around 2:00 a.m. the appellant was asked to leave by Ms. Nicholas's mother. When he left, he fell down some steps and then rammed his car into another vehicle. Nicholas also stated that she saw the appellant later in the morning of April 18 at a Delchamps grocery store. The appellant was making a telephone call, looking at a newspaper, and attempting to sell his automobile, an old model Buick Century. At this time Nicholas loaned the appellant $4.00 so that he could get some gasoline for his car.

Douglas Thrash, a manager of the Riverchase Omelet Shoppe, saw the appellant at around 1:00 a.m. on the morning of April 18 at the Riverchase Omelet Shoppe. Thrash said that he recognized the appellant because he was a regular customer at the restaurant. The appellant spoke with Frieda Vines, one of the waitresses. Thrash heard mention of, at one point in the conversation, the Omelet Shoppe near the airport. Thrash also stated that the appellant knew all of the waitresses, including the victim, because he was a regular customer and that he talked with them all when he was in the restaurant.

Testimony also established that the appellant sold his car around 10:00 a.m. on the morning of the April 18, to Michael Brooks, a mechanic at the Alford Avenue Chevron gasoline service station in Birmingham. He told Brooks that his mother was sick and that he needed money to go home to California. One of the attendants at the service station took the appellant to the bus station between 11:30 and 12:00 p.m. that day. A ticket agent for Greyhound bus lines testified that she sold two tickets that day between 12:00 and 2:00 p.m. The two destinations were Houston, Texas, and Tulsa, Oklahoma.

When the appellant was living in Birmingham, he was sharing a house with Mitchell Babb. The house was a one-bedroom bungalow with no electricity. Evidence established that the appellant was in financial trouble. The house was owned by John Angwin. Angwin testified that the appellant lived in the house for approximately two months, that he paid no rent, and that he allowed the appellant to stay there so that the appellant could keep his job at a landscape company.

The evidence presented further established that near the appellant's residence in Birmingham was a gasoline service station, Rocky Ridey Road Service Station, where the appellant did some odd jobs. This station was managed by Leon Wooten. About 10 days before the homicide, a red Mazda RX7 automobile was brought into the service station for routine maintenance work. While the car was at the service station, the appellant was working there. Approximately two days before the homicide, the appellant was at the station more frequently, and he parked his Buick automobile there. He told the manager of the station that he wanted to leave his car there because he did not want the person who sold him the car, John Angwin, to know when he was driving the car. On April 18, one of the managers of the Rocky Ridey Road Service Station noticed that the ignition...