State v. Jenkins, 2010 Ohio 2719 (Ohio App. 6/14/2010)

• Decision Date: 14 June 2010
• Docket Number: No. 2009-CA-00150.,2009-CA-00150.
• Citation: 2010 Ohio 2719
• Parties: State of Ohio, Plaintiff-Appellee, v. Kendle A. Jenkins, Defendant-Appellant.
• Court: Ohio Court of Appeals

Page 1

2010 Ohio 2719

State of Ohio, Plaintiff-Appellee, v. Kendle A. Jenkins, Defendant-Appellant.

No. 2009-CA-00150.

Court of Appeals of Ohio, Fifth District, Stark County.

Date of Judgment Entry: June 14, 2010.

Criminal appeal from the Stark County Court of Common Pleas, Case No. 1995-CR-0271.

Vacated and Remanded.

John D. Ferrero, Prosecuting Attorney, by Kathleen O. Tatarsky, 110 Central Plaza South, Ste. 510, Canton, OH 44702, for Plaintiff-Appellee.

Fred D. Middleton, 1717 Superior Building, 815 Superior Avenue, East, Cleveland, OH 44114, for Defendant-Appellant.

Before: W. Scott Gwin, P.J., John W. Wise, J., Patricia A. Delaney, J.

OPINION

GWIN, P.J.

{¶1} Defendant-appellant Kendle A. Jenkins appeals from his conviction and sentence in the Stark County Court of Common Pleas on one count of attempted aggravated trafficking in violation of R.C. 2925.03(A)(9). The plaintiff-appellee is the State of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} In July 1994, Federal Drug Enforcement (DEA) Agent James Hummel was notified that a large-scale drug trafficking operation was taking place in the Los Angeles area known as the "Troy Brown Distribution Organization." Hummel learned that a large amount of cocaine — 100 times the bulk amount — was being shipped to eight cities located in the United States. One of those cities was Massillon, Ohio.

{¶3} Agent Hummel gathered a team of federal and local agents including Maureen McCabe and Charles Stirling of the DEA, Canton Police Officer Kevin Clary, and Marvin Wilmoth and his drug dog, Doc.

{¶4} The team visited the Federal Express office by the Akron-Canton Airport on Strausser Road and assembled an assortment of packages, 10 to 15, that had arrived for delivery in the area. Doc, the DEA drug dog, and Taz, the Stark Metro drug dog were assigned to investigate the unopened packages and "alerted" on a package to be delivered to "M. Gaines, 660 Fries St. Southeast, Massillon [sic], Ohio 44646." from "G. Gaines in Ontario, California." The address happened to be the home of Appellants' mother whose name at the time was Myra Jenkins.

{¶5} Based on the drug dogs' "alert," a search warrant was obtained to open the package to be delivered to Ellis Avenue. The package was opened from the bottom to preserve it and upon its opening, the team found Styrofoam packaging, Gerber baby cereal boxes and a large box of Tide laundry detergent. The Tide box was opened and lodged in the middle of the laundry detergent was a brick shaped block of a white substance that later tested positive for cocaine. Specifically, 822.4 grams of pure cocaine hydrochloride, derived from a naturally occurring cocaine plant mostly grown in South America. It was the first kilo of cocaine Canton Officer Clary had seen in the Stark Metro area and estimated to be worth $250,000 on the street when processed.

{¶6} The team began making plans to make a controlled delivery to the Ellis Avenue address. First, the kilo of cocaine was removed from the package and secured for analysis and safekeeping. Next, the 12" by 17" package, with its baby food, laundry detergent and packaging was reassembled for the delivery. Detective Bobby Grizzard of the Massillon Police Department was called in to assist the team in the delivery. Officer Clary donned a Fed Ex shirt and a body wire¹. He used an unmarked white Chevrolet Astro van for the controlled delivery:

{¶7} "[CLARY]: Once I got the signal, when they all met up in Massillon, the DEA Metro and Massillon Police, they took up their positions, I was notified over my walkie-talkie radio to go ahead and attempt to make delivery. So I drove over to Fries Street, parked in front of 660. It's got a porch on it, it's July 12th, it's hot out, the interior door was open, but it didn't have a screen door.

{¶8} "I went up, rang the doorbell and I could hear some voices, one male, one female inside. And then a black lady came to the door. I said, hi, FedEx, I have a delivery for M. Gaines, and I had — actually it looks like this one, a copy of the delivery label, I had it on a clipboard, and the lady signed M. Gaines. I have her possession of the box, the door went shut, I walked off the porch and drove away."

{¶9} About five minutes later, the assembled law enforcement team knocked on the Ellis Avenue door to execute the search warrant they obtained for the residence. Grizzard observed Appellant bent down with the Fed Ex package looking in the box.

{¶10} Besides Appellant, Appellant's mother, Appellant's' wife, Appellant's four-year-old son and two friends of Myra Jenkins occupied the home. A warrant check was done on the individuals and the home was searched. No money, guns or drugs were found in the search. The label to the Fed Ex package was found floating in the toilet.

{¶11} Appellant was asked by the team if he wanted to cooperate and he agreed. Appellant was asked to take some calls that were coming in so the DEA could get more information on the person in California who had sent the kilo of cocaine. Appellant attempted to take two phone calls that came in, but was unsuccessful in obtaining any names for the DEA.

{¶12} Appellant agreed to visit the team the next day at the Massillon Police Department for an interview. Appellant arrived at the interview with his mother and gave a five page detailed written statement to DEA Agents Stirling and McCabe.

{¶13} In sum, Appellant told the agents that on July 5, 1994, he met a high school friend named "Damon" at MoJack's bar in Cleveland. Damon asked Appellant if he would take delivery of some "weed" for $200.00. Jenkins agreed and told Damon to deliver it to his mother's address on Fries Street in Massillon, Ohio.

{¶14} On Tuesday, July 12, 1994, Appellant received a call from "Pooky" in California to ask if the package arrived. It was 11:30 am and the package had not arrived. So "Pooky" called again about 2:00 pm and gave Appellant a FedEx tracking number. Appellant then called FedEx three times to find out why the package had not been delivered. It was delivered about 6:45 pm. Appellant admitted to opening the package to take out some marijuana for himself. He tore off the label and threw it in the toilet.

{¶15} At the end, Appellant signed and dated the statement admitting that he read it, initialed each page and that it was given freely and voluntarily "without any threats, coercion or promises."

{¶16} Appellant agreed to assist law enforcement in the cocaine distribution and provided the team with his address in the Cleveland area. After the police obtained his statement, the Metro team went looking for him. They went to his mother's residence and learned that he was out of state.

{¶17} Appellant presented testimony from himself and his wife that he lived in Cleveland Heights until July 1994 when he and his wife lost their jobs and he decided to move their family to Houston, Texas, where each found employment. The family sold their furnishings, gave away the dog and lived with his mother in Massillon from July 13 to the end of July. Appellant admitted that he thought he was going to be arrested, claiming [I] don't know anybody that walks away from a kilo of cocaine, if it was cocaine." Appellant testified that he told the DEA agents that he was moving to Houston and they approved the move telling him to have a good life. Appellant admits that he never provided them with an address.

{¶18} On March 30, 1995, the Stark County Grand Jury secretly indicted Appellant on one count of aggravated trafficking — knowing possession of cocaine in an amount equal to or exceeding a hundred times the bulk amount, a violation of R.C. 2925.03(A)(9). That same day, a capias was issued for Appellants' arrest showing his last known address as 3760 Lowell Road, Cleveland Heights, Ohio.

{¶19} Appellant was arrested some thirteen years later on December 11, 2008. Prior to trial, Appellant filed a motion to dismiss arguing that proceeding with the case some thirteen years after the indictment violated his rights to speedy trial and the statute of limitations. Without conducting a hearing, and after considering the motion and the response of the state, the trial court overruled the motion finding that the delay was caused solely by Appellants' own actions in leaving the State of Ohio to live in Texas after becoming aware of the ongoing investigation:

{¶20} "R. C. 2901.13 states that leaving the state is prima facie evidence of the accused's purpose to avoid prosecution. In the present action, the defendant left the state of Ohio and went to Texas, making himself unavailable. Further, the defendant has not asserted that he would or has been prejudiced by the delay. Therefore, this Court finds that the delay between the defendant being indicted and his arrest was caused by the defendant's own actions and thus the statute of limitations has been tolled. Further, in balancing the factors laid out in Barker, this Court finds that the long time frame between the defendant's indictment and his arrest is outweighed by the defendant's own actions, the reasonable diligence of the State, and the complete lack of an assertion that the defense was or will be prejudiced by the delay."

{¶21} Appellants' case proceeded to jury trial on March 31, 2009. On the day of trial, Appellant filed a motion to suppress the statement he gave to law enforcement in April 2004 arguing that it was coerced. That motion was overruled because it was not timely filed. However, Appellant was allowed to testify that he was coerced into making the statement. Denouncing his written statement at trial, Appellant claimed it was a lie — only made after the DEA told him to take the fall for his mama, saying "...He told me if I don't — he said, you know, you should take this case. If you don't take this case, you mama will lose everything. Back then, I was willing to take the case because I wasn't working anyway and I was young. I wouldn't let her get in trouble...