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State v. Jenkins

Supreme Court of Kansas

July 27, 2018

State of Kansas, Appellee,
Thomas Eugene Jenkins, Appellant.


         1. When a defendant challenges the sufficiency of the evidence, an appellate court reviews the evidence in a light most favorable to the State and upholds the conviction if it is convinced that a rational fact-finder could have found the defendant guilty beyond a reasonable doubt. The court does not reweigh the evidence or pass on the credibility of witnesses.

         2. A conviction of even the gravest offense can be based entirely on circumstantial evidence and the inferences fairly deducible therefrom. If an inference is a reasonable one, the jury has the right to make the inference.

         3. When considering whether a new trial is warranted based on juror misconduct, the trial court first considers whether there was a fundamental failure in the proceeding. If a fundamental failure did occur, the trial court moves to the second step and considers whether the party benefiting from the failure has shown the trial can continue without an injustice, meaning the party has shown beyond a reasonable doubt that the failure did not affect the outcome of the trial. An appellate court reviews the trial court's decision in two parts. It reviews the conclusion on whether a fundamental failure occurred for an abuse of discretion. As for the second question-whether any failure resulted in injustice-an appellate court does not review the district court's decision for abuse of discretion but considers the entire record and performs its own constitutional harmless error review.

         4. If a court failed to suspend proceedings and conduct a competency hearing in accordance with K.S.A. 22-3302, a retrospective hearing may rectify the error.

         5. To determine whether it is feasible to retrospectively determine the defendant's competency at the time of the trial, a court considers the following four factors: (1) the passage of time; (2) the availability of contemporaneous medical evidence, including medical records and prior competency determinations; (3) any statements by the defendant in the trial record; and (4) the availability of individuals and trial witnesses, both experts and non-experts, who were in a position to interact with the defendant before and during trial, including the trial judge, counsel for both the government and the defendant, and jail officials.

          Appeal from Saline District Court; Jerome P. Hellmer, judge. Opinion filed July 27, 2018. Affirmed.

          Gerald E. Wells, of Jerry Wells Attorney-at-Law, of Lawrence, argued the cause and was on the brief for appellant.

          Ellen H. Mitchell, county attorney, argued the cause, and Derek Schmidt, attorney general, was with her on the brief for appellee.


          Rosen, J.

         Thomas Jenkins appeals from his convictions for first-degree murder, two counts of aggravated burglary, theft, three counts of criminal threat, two counts of domestic battery, and criminal restraint. Finding no error on the part of the trial court, we affirm.

         Factual and Procedural Background

         On June 13, 2009, at approximately 6 a.m., officers responded to a call about potential burglaries of two different apartments in a complex at 1012 Johnstown in Salina, Kansas. When the officers arrived, Benjamin Friedman informed them that someone had burglarized his apartment and stolen some of his electronics. The officers inspected a second apartment, occupied by Alfred Mack and Jason Hartfield, and noticed damage to the front door. Upon entering that apartment, the officers found Mack's body lying on the floor. Mack had been killed by a gunshot wound to his chest.

         The State theorized that Thomas Jenkins colluded with Willie Parker, Justin Letourneau, and Travis Graham to burglarize Mack's and Friedman's apartments and that Parker shot and killed Mack as Parker and Jenkins carried out the burglary in Mack's apartment. The State charged Jenkins with first-degree murder under theories of premeditation and felony murder, solicitation to commit first-degree murder, two counts of aggravated burglary, and theft. The State also charged Jenkins with three counts of criminal threat, two counts of domestic battery, and criminal restraint based on events that took place after June 13, 2009.

         The facts supporting those charges are as follows:

         On June 12, 2009, at 10 p.m., Mack and Hartfield were both at home. At 12:30 a.m., a Pizza Hut employee delivered a food order to their apartment. The employee testified that there was nothing unusual about Mack's front door. Hartfield ate with Mack and left the apartment around 12:45 a.m.

         On the same evening, Friedman went to a movie with his girlfriend around 9 p.m. and then returned home to his apartment. When he arrived home, he had three house guests-Todd Gribble, Jacob Ward, and Logan Bohochik. Friedman was in bed by 12 a.m.

         At 2:09 a.m., officers responded to a call about a loud party at Friedman's apartment. Gribble and Ward left after the officers arrived. The officers left the apartment at 2:35 a.m. and Bohochik locked the front door and went to bed in one of the bedrooms. Gribble, Ward, and Bohochick all testified that Friedman's television, movies, and gaming equipment were in the apartment when they left or went to bed.

         Nathanial Johnson lived with Donyell Smith in another apartment in the same complex. Fifteen to twenty minutes after the police left Friedman's apartment, Johnson saw Jenkins outside his apartment window and went to speak with him. During the conversation, Jenkins pointed towards an open sliding door on the balcony of Friedman's apartment. Johnson told Jenkins that the people who lived there had been partying and were probably asleep. Smith testified that sometime after the police left Friedman's apartment and before she went to bed, she saw Jenkins with a black man and a white man outside the apartment she shared with Johnson. Parker is black; Letourneau and Graham are white.

         Shortly after 4:45 a.m. on June 13, Friedman heard a loud bang and someone rushing down some stairs. Friedman went to his living room and noticed the sliding door to the balcony was open. He also noticed his flat screen television, some DVDs, some video games, his PlayStation 3, and his car keys (to a car that did not run) were missing. Friedman later found his keys in his vehicle.

         After discovering his property was missing, Friedman went to the front door of Mack's apartment and noticed it looked like someone had shattered the door lock. He knocked on Mack's door, but no one answered. Friedman called 911 at 5:17 a.m.

         Officers arrived at Mack's apartment sometime between 5:55 and 6 a.m. Mack's door was not completely shut, there was a shoeprint on the door, and the strike plate was on the ground. The letters in the shoeprint spelled "Servus." When the officers knocked on the door, it opened, and they saw Mack's body on the floor. Upon entering, one of the officers observed a single shell casing from a .22 caliber bullet just inside the door.

         At trial, the State tried to establish that Jenkins had decided to break into Mack's apartment the day before Mack's death to steal money and drugs. Stanley McSwain testified that the day before Mack's death, McSwain and Charles Bates were with Jenkins. McSwain heard Bates tell Jenkins "I've got a lick for you." McSwain understood this to mean "a way to get over on somebody." Bates said that "the lick" was on Johnstown and the occupants would be out of town for a concert. McSwain understood Bates to be referring to the Johnstown apartment complex. An investigator testified that McSwain told him Bates had provided this information because Jenkins had been telling the men that he was worried about money. The investigator also testified that Bates wanted a television in return for the tip. Bates denied having this conversation or meeting with Jenkins and McSwain when he testified at trial.

         The State argued to the jury that Jenkins had kicked in Mack's door to facilitate the burglary. It used statements and testimony from Kendra Jenkins (Kendra), Jenkins' wife, to support this argument. At trial, the State introduced a pair of boots with a sole that spelled "Servus"-the same marking in the footprint on Mack's door. Kendra testified that Jenkins wore a pair of identical boots when he worked at Russell Stover. An investigator testified that Kendra told her Jenkins tried to burn his work boots a few days after Mack's death.

         The State built much of the remainder of its case on comments that Kendra made during police interviews and on the testimony of Hassan Williford, the father of Kendra's son. An investigator testified that Kendra told her that on June 13, Jenkins, Parker, and Letourneau were at her house when she arrived home sometime after 2 a.m. with her friend, Jackie Colvin. Kendra and Colvin eventually left and met up with Williford. The three of them made various stops before Kendra and Williford parted ways with Colvin and went for a drive.

         Sometime between 4 and 5 a.m., Kendra received a phone call. She told Williford he needed to be quiet because it was Jenkins calling. Williford testified that he could hear both sides of the conversation during this phone call because the volume was on the loudest setting. Williford heard Kendra ask the person on the phone what he was doing, and the person responded "sitting outside the place" and that "he had to get off the phone because he was-he was about to go handle what he had to handle and he'd call her back when he got done." The person called back 15 to 20 minutes later. Williford testified that Kendra asked the caller if he had done what he was going to do, and the caller said "'[y]eah, that he got some miscellaneous objects from whatever he was going to do, and for her to meet him back at the house because they had to get rid of some things.'" Williford also heard the person say that "'[s]ome things got kicked off but I took care of the situation.'"

         Kendra returned home from her drive with Williford sometime between 6 and 7 a.m. and saw Jenkins, Parker, and Letourneau in her living room. Kendra went to bed and, when she woke up, the men were not there.

         Kendra confirmed the occurrence of some of these events during her trial testimony, but could not recall them all, and remembered some of them differently. Colvin eventually confirmed that she had been with Kendra and Williford on June 13, but she first told investigators that Jenkins had been with her and Kendra from the time the women returned home from the bars until 5 or 6 a.m. One of investigators testified that Colvin told him she lied because Jenkins "needed an alibi." Colvin testified that she lied because Kendra had asked her to but also because she thought her husband would be less angry if she was out with a married couple.

         Kendra Yanik-Ducharme, the common-law wife of Letourneau, and Tiffany Wellman, the mother of Parker's son, also testified for the State. Yanik-Ducharme testified that Letourneau woke her in the morning of June 13 when it was still dark outside and he had television and a PlayStation 3 with him. The television remained at her house for a few days and then Parker and Letourneau took it to Wichita.

         At the time of Mack's death, Parker lived with Wellman. Wellman testified that when she woke up on June 13, Parker, Letourneau, and maybe Letourneau's brother, Travis Graham, were at her house. Parker and Letourneau eventually ...

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