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State v. Jenkins

Supreme Court of Kansas

January 10, 2020

State of Kansas, Appellee,
v.
Sherman Norman Jenkins, Appellant.

         SYLLABUS BY THE COURT

         1. The seven-factor test for authenticating an audio recording outlined in State v. Williams, 235 Kan. 485, 681 P.2d 660 (1984), is no longer controlling in Kansas. Audio recordings qualify as writings under the Kansas Rules of Evidence, K.S.A. 60-401 et seq.

         2. Under the rules of evidence, K.S.A. 60-401 et seq., the authentication requirement for a writing is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. The burden of authentication is minimal or slight, and there is no precise formula for district judges to determine authenticity. Indirect or circumstantial evidence can suffice. A proponent need only proffer evidence upon which a reasonable juror could conclude that an audio recording is what the proponent represents it to be. Such evidence may include the content of the recordings. Discrepancies and other conflicting evidence go to the weight, not the admissibility, of the recordings.

         3. On the record in this case, the district judge did not abuse his discretion in admitting jail telephone call recordings into evidence.

         4. The phrase "moving violations" in K.S.A. 2015 Supp. 8-1568(b)(1)(E), Kansas' fleeing and eluding statute, is not unconstitutionally vague.

          Appeal from Shawnee District Court; Mark S. Braun, judge.

          Korey A. Kaul, of Kansas Appellate Defender Office, argued the cause, and was on the brief for appellant.

          Steven J. Obermeier, assistant solicitor general, argued the cause, and Derek Schmidt, attorney general, was with him on the brief for appellee.

          BEIER, J.

         Sherman Norman Jenkins led police on two separate vehicle chases in one night. The second chase ended in a fatal crash. A jury convicted Jenkins of first-degree felony murder, two counts of aggravated battery, two counts of felony fleeing and eluding police, one count of theft, one count of driving without tail lamps, and one count of driving while suspended.

         Jenkins directly appeals his convictions to this court, raising two arguments. First, he argues that the district court judge erred by admitting as evidence recorded jail calls made using Jenkins' assigned personal identification number. We hold that the calls were properly admitted.

         Second, Jenkins challenges the constitutionality of one of the options within a means of the felony fleeing and eluding statute. We reject his contention that the provision is unconstitutionally vague.

         We therefore affirm.

         Factual and Procedural History

         During the early morning hours of February 4, 2016, Topeka-area law enforcement participated in two different vehicle pursuits.

         The first pursuit involved a minivan and began shortly before 3 a.m. The van drove eastbound on Interstate 70 from Topeka and did not pull over, despite a law enforcement officer's use of lights and sirens. After the van accelerated to 90 miles per hour, the pursuit was called off. A different officer reinitiated pursuit after he observed the van make a U-turn at the I-70 toll plaza parking lot and return westbound toward Topeka. During this pursuit, the van's driver ran a red light, twice failed to signal before exiting, and failed to stop at three stop signs. The pursuit ended in North Topeka, where the van went off-road and crashed. Law enforcement did not find the van's driver at the scene of the crash but did find a female passenger in the van.

         The second chase was set in motion a little after 4 a.m., when Craig Droge realized that someone had stolen his friend Donella Davidson's pickup from outside his home in North Topeka.

         About an hour later, Officer Kurtis VanDonge noticed a pickup driving in North Topeka with nonoperational taillights. He followed the pickup and activated his lights, then his siren, and eventually his public announcement system. Despite this, the pickup's driver did not pull over. VanDonge's bodycam recorded the ensuing pursuit, which took a circuitous route through North Topeka before crossing the Kansas Avenue bridge into downtown Topeka.

         During this pursuit, the pickup's driver committed numerous moving violations. He twice turned into an incorrect lane, three times failed to maintain a single lane, drove on the left side of a two-way street, three times failed to come to a complete stop at a stop sign, and turned left through a red light. The driver also maneuvered around at least one set of stop sticks placed in the road by law enforcement. The pursuit ended when the pickup ran a red light at the intersection of Sixth Street and Topeka Boulevard and hit two cars. The crash injured Danny Williams Jr. and Benjamin Falley, the drivers of the two cars. It killed Mia Holden, a passenger in Falley's car.

         Immediately after the crash, police officers removed the driver and only occupant from the pickup. This person was later identified as defendant Jenkins. Jenkins was taken to the hospital, then moved to the Shawnee County Jail.

         The State charged Jenkins with first-degree felony murder, felony fleeing and eluding, theft, two counts of aggravated battery, driving without taillights, and driving with a suspended license.

         At the jail, Jenkins was assigned a unique personal identification number (PIN) to be used to make outgoing calls on the jail's Securus telephone system. Jenkins' PIN was used to make six calls on February 5, 2016.

         A detective listened to recordings of these calls. There were two primary speakers, one male and one female. The male speaker on the calls discussed not only the pickup chase and fatal crash, but also the earlier van chase. As a result, the State charged Jenkins with a second count of felony fleeing and eluding for the van chase.

         At trial multiple law enforcement officers detailed their involvement with the chases and subsequent investigation. Officers Josh Miller and Joshua Franco described their pursuit of the van and the multiple moving violations they witnessed. The State played VanDonge's bodycam footage of the pursuit of the pickup while VanDonge narrated, explaining each moving violation he witnessed as it appeared onscreen.

         Lieutenant Matt Biltoft from the Shawnee County Department of Corrections testified about the Securus software system. He said that each inmate is assigned a unique PIN when admitted to the jail. Inmates must use a PIN to make an outgoing call. The Securus software system records each outgoing call. Biltoft, as a Securus operator, can search the system using an inmate's name or PIN and identify all outgoing calls made with the inmate's PIN. When Biltoft searched the Securus system for all calls made with Jenkins' assigned PIN, he found six calls made using Jenkins' PIN on February 5, 2016. He listened to the calls and noted that "it was all similar information." Biltoft said that he did not know Jenkins' voice from any previous interactions and that he did not know who the other speakers on the calls were.

         The State moved to introduce recordings of five calls into evidence. Jenkins objected; he argued that the State failed to sufficiently identify him as the male speaker on the calls. The district judge ruled that the State sufficiently established the identities of the speakers and overruled Jenkins' objection. The district judge stated:

"[T]he circumstances and the nature of the recordings themselves identifies the authenticity and the identity of Mr. Jenkins speaking because this is the day after the fatality crash and there are statements made by Mr. Jenkins recognizing that he had been in that collision and that he had killed a woman in that collision.
"So circumstantially, the odds that another person on the 5th of February calls up his girlfriend and confesses to being in a high-speed pursuit the night before in which a woman was killed is highly unlikely to the point where there's sufficient basis now for the Court to say this is an authentic copy of those jail calls."

         The State published the calls during Detective Jesse Sherer's testimony. Sherer said that during the six phone calls Jenkins made to a woman referred to as "Connie," Jenkins "accurately speaks about the facts of both chases that occurred in the morning of February 4th, including the types of vehicles that were involved, the general locations of where those chases occurred, how they occurred," and even "mentions stealing a truck and that it was involved in an accident at the location of the Sixth and Topeka accident." Sherer also testified that in one call Jenkins admitted fleeing on foot from the location of the van crash. In addition, Sherer said, according to Department of Motor Vehicle records, Jenkins' driver's license was revoked at the time of the two pursuits.

         Officer Ross Gustafson testified that the Vehicle Identification Number on the pickup identified it as belonging to Davidson. And the Shawnee County coroner testified that Holden died from several lethal injuries caused by the crash.

         Jenkins did not put on any evidence.

         The district judge gave the jury two separate fleeing and eluding instructions, one for each charge. In the first instruction-pertaining to the pickup pursuit-the district judge instructed the jury about four possible options within a means by which Jenkins may have committed felony fleeing and eluding: driving around a tire deflating device placed by a police officer (K.S.A. 2015 Supp. 8-1568[b][1][B]); engaging in reckless driving (K.S.A. 2015 Supp. 8-1568[b][1][C]); involvement in a motor vehicle accident (K.S.A. 2015 Supp. 8-1568[b][1][D]); and committing five or more moving violations (K.S.A. 2015 Supp. 8-1568[b][1][E]). This instruction also defined "reckless driving." In the second fleeing and eluding instruction-pertaining to the van pursuit-the district judge listed only one option within a means: committing five or more moving violations.

         The district judge also instructed the jury about the definition of "moving violations," taking language from K.A.R. 92-52-9(a). The instruction said that ...


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