Jenkins v. State

• Decision Date: 08 November 2004
• Docket Number: No. S04A1260.,S04A1260.
• Citation: 604 S.E.2d 789,278 Ga. 598
• Parties: JENKINS v. The STATE.
• Court: Georgia Supreme Court

604 S.E.2d 789

278 Ga. 598

JENKINS v. The STATE.

No. S04A1260.

Supreme Court of Georgia.

November 8, 2004.

Hagler & Hyles, M. Stephen Hyles, Clark C. Adams, Jr., Columbus, for appellant.

J. Gray Conger, District Attorney Mark C. Post, Assistant District Attorney, Thurbert E. Baker, Attorney General for appellee.

FLETCHER, Chief Justice.

In accordance with the Unified Appeal Procedure, we granted the application for interim review in this death penalty case. The State charged Byron Jenkins with malice murder, felony murder, aggravated assault, three counts of armed robbery, kidnapping with bodily injury, burglary, and two counts of possession of a firearm during the commission of a crime. Jenkins filed a plea in bar seeking dismissal of all the charges except for murder and felony murder because of the expiration of the statute of limitations, and also challenged the admissibility of certain hearsay statements that the trial court had ruled admissible under the necessity exception.

We requested that the parties address these two issues: (1) if the trial court properly ruled that the statute of limitations had expired and was not tolled for all the charges except murder and felony murder, should the trial court still submit that particular issue to the jury; and (2) are Arthur Jenkins's statements to the police admissible under the necessity exception to the rule against hearsay evidence?

It is uncontroverted that the State did not indict Jenkins until more than seven years had passed since his alleged commission of the crimes, but the State argued that the statute of limitations was tolled during that period because they did not know the identity of the perpetrator. Although the trial court found that the statute of limitations had expired on all the charges except for murder and felony murder, it still ruled that the tolling question should be submitted to the jury at trial. We conclude that the trial court properly concluded as a matter of law that the statute of limitations had expired and was not tolled for all the charges except murder and felony murder, and that the trial court erred by ruling that the issue must still be submitted to the jury.

The trial court also ruled before trial that statements given to police by Jenkins's uncle, Arthur Jenkins, were admissible under the necessity exception to the hearsay rule. Because the recent United States Supreme Court decision of Crawford v. Washington¹ prohibits the admission of those statements, however, we reverse that particular ruling.

THE STATUTE OF LIMITATIONS

1. The progression of the investigation is an important part of the determination of whether the statute of limitations tolled in this case for the lack of a known suspect. On August 25, 1993, Doyle Butler visited his cabin in Harris County to mow the lawn and perform some other chores. After he failed to return to Columbus for a 6:00 p.m. church function, Butler's wife and some friends drove to the cabin but could not find him. Butler's pickup truck, as well as some household items like a television, a weed eater, a shotgun, and a .22 caliber handgun, were missing from the cabin. There was a gas can and two burnt matches inside the cabin, indicating that someone may have tried to burn the cabin. There was also a bloodstain on the sofa.

The police arrived and searched the surrounding area. At midnight, they found Butler's pickup truck parked on a road only a few hundred feet from Butler's cabin. The pickup truck had not been parked there when the officers first responded to the crime scene several hours earlier. The bed of the pickup truck was wet as if it had recently been hosed down, and there was a cigarette butt in the bed of the truck. The next morning, the police found two guns on Butler's property near a beer can that had been cut in half to create a "crack smoking device." The guns were a .22 caliber handgun, identified as belonging to the victim, and a .22 caliber Winchester rifle, which the victim's family said did not belong to them.

The police found Butler's body on a nearby logging trail. He had suffered several blows to the head and died from a.22 caliber gunshot wound to the back of his head. The GBI crime lab tested the bullet from the victim's head and found that it matched the bullets test-fired from the victim's .22 caliber handgun.

The police also discovered a bullet hole inside Butler's cabin and extracted a bullet from the wall. The crime lab determined that this bullet was consistent with bullets test-fired from the .22 caliber Winchester rifle.

The police interviewed Byron Jenkins on August 26, 1993. They were interested in speaking with him because he lived only two-tenths of a mile from Butler's cabin in a house with his elderly grandmother and uncle. Jenkins was a crack addict who had been convicted of three August 1992 burglaries or attempted burglaries of houses within four tenths of a mile of his house. In a written confession to those burglaries, Jenkins had admitted his crack addiction. He had been incarcerated for the burglaries until early 1993.

During the interview, Jenkins said that he had been at home all day on August 25, mowing the lawn, watching TV, and taking a nap, and that his grandmother could verify his alibi. He agreed to a search of his bedroom and the police seized some of his clothes.

When police spoke with Jenkins's grandmother that same day, she said Jenkins had left home on the afternoon of August 25 and had not returned until after midnight. The police also spoke with Jenkins's uncle, Arthur Jenkins. Arthur said he had gone to Florida to buy lottery tickets on August 25, and that when he returned home at 1:00 p.m., Jenkins was not there. He stated that Jenkins did not come home until after midnight. Arthur Jenkins also identified the .22 caliber Winchester rifle as his and said he had been looking for it. He further stated that his nephew smoked cigarettes and did not have a car.

The police interviewed Jenkins again. After admitting that he had lied when first questioned by the police, he changed his story and stated that he had left his house the afternoon of August 25 and hitchhiked to a crack house in a nearby town where he had smoked $50 of crack all day. He had returned at midnight, but he could not provide the names of anyone who had given him a ride. The police went to the place he had described and found that it was indeed a crack house. His grandmother also changed her story when the police spoke to her again. She said she remembered that Jenkins was home watching TV when she returned from a funeral at 4:30 p.m. on August 25.

The first attempt to lift identifiable fingerprints from the pickup truck cab was unsuccessful, but a later attempt on September 7, 1993, using the "Super Glue" method, preserved a palm print from an armrest on the driver's seat. The GBI analyst, however, found that it lacked "sufficient ridge detail" for a match with Jenkins's (or anyone's) palm print.

The police drew Jenkins's blood pursuant to a search warrant in December 1993. In January 1994, the crime lab found that DNA extracted from saliva on the cigarette butt in the truck bed was a match with Jenkins's DNA. Due to the imprecision of the DNA test used, the crime lab could only report that this DNA profile was consistent with one out of one thousand African-Americans.

The police investigated other drug addicts and people in Jenkins's circle of acquaintances and, in February and March 1994, two people stated that Jenkins had called them on August 25 and asked them if they were interested in buying a TV which he had on the back of a pickup truck. One of these witnesses stated that Jenkins had informed him that he had obtained the TV from "some old man." A person jailed with Jenkins in September 1993 also reported to the police that Jenkins had called someone on the telephone in the days after the murder of Doyle Butler and instructed them to get rid of some clothes. The investigation then petered out, and Jenkins spent several years incarcerated for drug and theft offenses in Florida and Georgia.

On July 25, 2000, a prosecutor on the case brought the unidentified palm print to a fingerprint examiner who concluded that it was indeed a match for Jenkins. The print was then sent to the same GBI fingerprint examiner who had examined it in 1993 and this time he also identified it as a match for Jenkins. On September 11, 2000, more than seven years after the alleged commission of the crimes, Jenkins was indicted for the murder and felony murder of Doyle Butler and for armed robbery, burglary, kidnapping with bodily injury, and possession of a firearm during the commission of a felony. He was re-indicted a year later so the State could add to the charges other than murder² an allegation that the statute of limitations was tolled because Jenkins "was not usually and publicly a resident within the State of Georgia and because the identity of said Byron Jenkins as the person committing the crime was unknown until July 25, 2000."³

A. The statute of limitations had run and was not tolled as to the non-murder charges. Jenkins filed a plea in bar claiming that all the charges except for murder and felony murder should be dismissed because of the expiration of the statute of limitations. Armed robbery and kidnapping with bodily injury have seven-year statutes of limitation.⁴ Burglary, aggravated assault, and the firearm possession charges have four-year statutes of limitation.⁵ In criminal cases, the statute of limitations runs from the time of the criminal act to the time of indictment.⁶ It is uncontroverted that the State did not indict Jenkins until more than seven years had elapsed from the date of the commission of the offenses.

In its argument that the statute of limitations had been tolled as to the non-murder charges, the State first conceded that Jenkins was often a public resident of Georgia so that the...