Carlos Deandre Jenkins v. Commonwealth of Kentucky

RENDERED: SEPTEMBER 24, 2020
TO BE PUBLISHED
Supreme Court of Kentucky
2019-SC-0252-MR
CARLOS DEANDRE JENKINS APPELLANT
ON APPEAL FROM FAYETTE CIRCUIT COURT
V. HONORABLE KIMBERLY N. BUNNELL, JUDGE
NO. 17-CR-01028
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY JUSTICE WRIGHT
AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
A Fayette Circuit Court jury convicted Appellant, Carlos Deandre
Jenkins, of first-degree assault, eight counts of first-degree wanton
endangerment, tampering with physical evidence, and of being a persistent
felony offender (PFO). Jenkins was sentenced to life and fifty years, and now
appeals to this Court as a matter of right. Ky. Const. §110(2)(b).
On appeal, Jenkins alleges the trial court erred by: (1) denying a missing
evidence instruction, (2) admitting cell phone location evidence, and (3) failing
to grant a directed verdict on the PFO charge.
For the following reasons, we affirm in part, reverse in part, and remand
to the trial court for further proceedings consistent with this opinion.
Specifically, we affirm Jenkins’s felony convictions, reverse his second-degree
PFO conviction, and remand for re-sentencing.
I. BACKGROUND
On the afternoon of June 12 and during the early morning hours of June
13, 2017, there were three separate shooting incidents in Lexington, Kentucky.
The first shooting happened during the afternoon of June 12 on Carneal
Road.1 There, Jenkins drove by Vincent Howard walking toward a vehicle and
fired shots at him. The second shooting (also on Carneal Road) occurred at the
residence of Summer Beatty, girlfriend of William Noland. Howard and Noland
were friends and Beatty let Howard stay upstairs at her home. Howard was at
the residence, but Noland was in jail when Jenkins drove up to Beatty’s house
and opened fire with two handguns. The third shooting ensued shortly after
the shooting at Beatty’s residence. Leading up to this final shooting, Jenkins
backed into Asante Wardlaw’s vehicle at a Thorntons gas station. Wardlaw
gave chase to Jenkins’s vehicle and got a license plate number. During the
chase, Deondre Stokes, a passenger in Jenkins’s car, fired shots at Wardlaw.
No one was seriously injured in the first and third shootings; however,
during the second shooting, thirteen-year old Amaya Catching was shot in the
back. The bullet entered Catching’s back near the shoulder blade and lodged
1 Throughout the case and briefs, Carneal Road is alternatively referred to as
Carneal Drive, Carneal Road, and Carneal-Highland Drive. For clarity, we use Carneal
Road in this opinion when discussing the first and second shootings.
2
in her spine, leaving her permanently paralyzed below the spinal cord injury.
Police arrested Jenkins and Stokes for the three shootings.
The Commonwealth’s theory of the case was that Jenkins (who claimed
Noland and Howard robbed him) sought revenge. Jenkins used two handguns,
a Glock 26 9mm and a stolen Glock 43 9mm, during the shootings. Stokes
was the Commonwealth’s main witness against Jenkins. Stokes was with
Jenkins during all three shootings and fired shots at Wardlaw. He accepted a
plea deal to testify against Jenkins.
Stokes told police that Jenkins would “borrow” used cars from Lucas
Hubbard, the general sales manager at the Chrysler of Lawrenceburg
dealership. Jenkins used the vehicles from the time they arrived on the lot
until they were entered in the dealership’s computer as inventory. Hubbard
allowed Jenkins to use the vehicles in exchange for drugs.
Witnesses described different vehicles at various shooting scenes. Early
in the investigation, this made it difficult for police to connect the shootings to
a single shooter. Jenkins drove a silver vehicle during the first shooting. Linda
Riley, a neighbor, described seeing a silver, teardrop-shaped vehicle with a
deep scratch on the front passenger door drive away after the first shooting
incident. Stokes confirmed Jenkins was driving a silver car that afternoon and
testified Jenkins fired the shots at Howard. After the shooting, Scott Gilfedder,
a neighbor, recovered two shell casings and a side mirror cover from a silver
car and turned those items over to a Lexington police officer.
3
Shortly after the first shooting, Jenkins swapped vehicles—this time
getting a blue 2016 Nissan Versa Note hatchback. He drove the Nissan during
the second and third shootings. According to Stokes, Jenkins drove that car to
Beatty’s residence after midnight the morning of July 13. Two of Beatty’s
neighbors described a blue vehicle leaving the scene the night of the shooting.
When police showed the witnesses vehicle photos, they identified the blue
Nissan.
Stokes said that Jenkins drove to Beatty’s residence with two Glock
handguns, one with a 32-round magazine and one with a seven-round
magazine. According to Stokes, when he and Jenkins arrived at Beatty’s
residence shortly before 3:00 a.m., Jenkins stepped out of the vehicle and
opened fire, emptying the magazines from both guns into the front of the
house. One of those shots hit Catching while she slept on a couch in the front
room. Police recovered thirty-five 9 mm shell casings at Beatty’s residence.
Stokes told police that he and Jenkins threw shell casings out the
window as they drove from Beatty’s residence. Stokes claimed they were
unable to dispose of one of the guns in a trashcan because of police cars in the
area.
Shortly after leaving Beatty’s residence, Jenkins stopped at a Thorntons
gas station to buy cigarettes. Wardlaw was getting gas at the station during
Jenkins’s stop. As Jenkins was leaving, he backed into Wardlaw’s car and did
not stop. Wardlaw followed the car and saw it side-swipe another vehicle.
During Wardlaw’s pursuit Stokes fired shots at Wardlaw on Walden Avenue.
4
Wardlaw called 911 and attempted to flee from the blue Nissan. When
Wardlaw stopped at a traffic light, the blue Nissan came up behind him and
Jenkins got out with a gun in his hand. No shots were fired at that point.
Wardlaw followed the 911 dispatcher’s instructions and returned to the
Thorntons gas station to meet with police. Later that day, a resident on
Walden Drive near where Wardlaw said shots were fired, found three shell
casings and turned them over to police. Stokes later confirmed Wardlaw’s
version of events to police.
When Jenkins attempted to return the Nissan to Hubbard, Hubbard
would not accept the vehicle once he saw the damage to the car. When
Jenkins and Stokes attempted to clean the vehicle with bleach, a suspicious
neighbor, Michael McCoy, photographed them and called police. Officer Nally
responded to the call. Nally testified that there was a strong smell of bleach
and visible residue from a recent cleaning. Nally had the vehicle towed.
Lexington Police Detective Robert Wilson was assigned as lead detective
for the Carneal Road shootings. During his investigation, Detective Wilson
located Hubbard and obtained Jenkins’s and Stokes’s names from him. Once
he had the names, Wilson tracked down two cell phone numbers used by
Jenkins and Stokes and acquired historical cell phone reports from the two
phone companies.
After Detective Wilson obtained the historical cell phone reports for
Jenkins’s and Stokes’s cell phones, he gave that information to Lexington
Police Sergeant Tyson Carroll, who specialized in electronic evidence. Sergeant
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Carroll mapped cell tower coordinates from the cell phone reports focusing on
time periods surrounding the shootings. The towers identified in both cell
phone reports were located close to Carneal Road.
Police recovered the Glock 43 9 mm pistol during their investigation but
were unable to locate the Glock 26 9 mm. Eight spent casings from the late-
night Carneal Road shooting matched the Glock 43. The remaining 27 shell
casings (including the two casings recovered from the Howard shooting, the
casings from the Beatty residence shooting, and the three casings recovered
from Walden Drive) were fired from the same unknown gun and were
consistent with having been fired from a Glock. Ten projectiles recovered from
Beatty’s residence had not been fired from the recovered Glock 43. However,
those bullets did match the hammer forged rifling of a Glock 9 mm handgun.
At trial, the jury found Jenkins guilty of first-degree assault, eight counts
of first-degree wanton endangerment, tampering with physical evidence, and
found him to be a second-degree PFO. The jury recommended a life sentence
plus consecutive terms of imprisonment for the remaining offenses. The trial
court imposed a sentence of life and fifty years’ imprisonment to run
concurrently.
II. ANALYSIS
A. Failure to Give Missing Evidence Instruction
Jenkins argues the trial court erred in denying his request for a missing
evidence instruction for the pretrial destruction of three shell casings recovered
by police from Walden Drive. Ballistics lab analysis matched those three
6
casings with casings recovered by police on Carneal Road. The Lexington
Police’s Division of Property and Evidence destroyed the three shell casings on
July 9, 2018.
Jenkins filed a motion to exclude evidence and testimony relating to the
three shell casings. In that motion, Jenkins also included a request for a
missing evidence instruction. At a hearing held on February 14, 2019, the trial
court heard testimony from two witnesses, Michael Cook, Head of the
Lexington Police Property and Evidence Division, and David Day, a retired
Lexington police officer. The trial court overruled the motion to exclude any
evidence about the three shell casings and ruled it would not provide the jury
with the requested missing evidence instruction.
Although the trial court found the police had intentionally destroyed the
shell casings, the trial court further found the police did not act in bad faith.
Further finding the shell casings had no obvious exculpatory value, the trial
court ruled there was no violation of Jenkins’s due process rights. The trial
court specifically relied on this Court’s decision in Estep v. Commonwealth, 64
S.W.3d 805, 810 (Ky. 2002), in which we said: “absent some degree of ‘bad
faith,’ the defendant is not entitled to an instruction that the jury may draw an
adverse inference from that failure.”
Cook and Day testified about the case history of the three shell casings
and their destruction pursuant to police department procedures. Officer Day
retrieved the three casings when he was dispatched to a residence on Walden
Drive during the afternoon following the previous early morning shootings.
7
Owen Hollinsworth, a resident of Walden Drive, found the three casings at the
end of his driveway where it met the street. Hollingsworth turned them over to
Officer Day.
Officer Day checked with dispatch to see if any shootings had been
reported in the area where the casings were found and received a negative
response. Following Lexington Police Department procedure, Officer Day, who
had served over a decade in the Lexington Police Department’s forensics unit,
booked the casings in the property room as “found property.” Found property
lacks an identified owner and is not attached to any known active case. Cook
testified the designation meant that under standard operating procedures, if
the property was not otherwise identified in the interim, it would be destroyed
in ninety days.
When Cook sought to destroy the casings (still identified as “found
property”) ninety days later, they had been checked out by Detective Wilson.
Detective Wilson sent the three casings to the Kentucky State Police Crime lab
along with the shell casings from the two Carneal Road shootings. KSP crime
lab firearms examiner Lawrence Pilcher determined that the three casings
matched recovered shell casings from the two Carneal Road shootings.
However, the casings did not match the 9 mm handgun police had in evidence.
Lab analysis determined that the casings recovered on Walden Avenue and
most of the recovered casings from the two Carneal Road shootings were fired
from a 9 mm handgun never recovered by police.
8
After the three casings were returned from the lab to the property room,
the Commonwealth’s Attorney’s office checked them out for review and again
returned them to the property room. In December 2017, Officer Day was sent
a standard computer-generated email advising him that the shell casings were
still in evidence and inquired about disposal. For the casings to be destroyed,
Officer Day had to sign and return a form.
Officer Day checked to determine if there were any police actions
connected to the found property case number and he determined there were
none. Despite significant activity noted on other case numbers including lab
analysis matching the three shell casings with shell casings fired from an
unknown gun used in the Carneal Road shootings, no officer or detective had
changed the designation of the three casings from “found property” to
“evidence.” Once the signed form was returned by Officer Day, the property
division followed standard procedures for found property and destroyed the
casings several months later.
At trial, Detective Wilson took responsibility for not changing the
designation on the three casings from “found property” to “evidence.” Wilson
stated he assumed that the casings had been entered as evidence rather than
found property—an assumption he never verified. Routine trial preparation led
to the discovery of the destruction. Jenkins filed a motion to exclude any
evidence or testimony relating to the three casings and requested a missing
evidence instruction. As noted above, the trial court overruled the motion and
denied the requested instruction. The issue is preserved for appeal.
9
A missing evidence instruction serves as a “cure” for a due process
violation caused by intentional prosecutorial misconduct in destroying
evidence. Not every intentional act of evidence destruction is a due process
violation, and not every destruction requires a missing evidence instruction.
When required, the instruction offsets the misconduct. We have explained:
the testimony of these witnesses, while important, was not
essential to the Commonwealth’s case. The relief requested and
denied was not dismissal or exclusion, but simply an instruction
permitting the jury to draw a favorable inference for the defendant
from the destruction of the evidence. Reversal with directions to
give the requested instruction is the appropriate remedy. In State
v. Maniccia, 355 N.W.2d 256, 259 (Iowa App.1984), in similar
circumstances, the court held that a missing evidence instruction
was sufficient to offset the prosecutor’s misconduct.
Sanborn v. Commonwealth, 754 S.W.2d 534, 540 (Ky. 1988), overruled on other
grounds by Hudson v. Commonwealth, 202 S.W.3d 17 (Ky. 2006)
In Sanborn, the prosecutor intentionally erased tape recordings of three
witnesses in anticipation that the trial court would order them turned over to
the defense. There, we noted the egregious circumstance coupled with the trial
court’s denial of the requested missing evidence instruction and we reversed.
Id. That is not the nature of the factual situation in the present case.
When required, a missing evidence instruction must contain the
language “intentionally and in bad faith lost or destroyed.” University Medical
Center, Inc. v. Beglin, 375 S.W.3d 783, 787 (Ky. 2011). We require the
language in both civil and criminal cases. Monsanto Co. v. Reed, 950 S.W.2d
811, 815 (Ky. 1997). A missing evidence instruction is not required unless
both elements (intentional destruction and bad faith) are present. A review of
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the record supports the trial court’s determination that the intentional
destruction of the shell casings was not carried out in bad faith.
The police’s destruction of the three shell casings was described by the
trial court as regrettable and not the best practice for maintaining evidence.
However, Cook’s and Day’s testimonies make clear that both followed existing
police department procedures regarding the shell casings. Destruction flowed
from the designation of the casings as “found property” and there was no bad
faith in the police conduct.
Conceivably, if Detective Wilson had verified the designation and changed
it to “evidence,” the Commonwealth would have had the actual casings for the
jury to view. Instead, the Commonwealth relied on the testimony of KSP
firearms examiner Lawrence Pilcher and Jenkins’s codefendant Stokes to
connect the shells on Walden Drive to the shells found on Carneal Road. This
mishap forced the Commonwealth to spend time explaining a mistake to the
jury.
Merely looking at the shell casings reveals no visible exculpatory value,
an essential element required for a due process violation claim to succeed. As
a result, the trial court found no violation. “In failure-to-preserve cases, the
defendant must also be able to show both that the missing evidence
‘possess[ed] an exculpatory value that was apparent before the evidence was
destroyed’ and that he was ‘unable to obtain comparable evidence by other
reasonably available means.’” McPherson v. Commonwealth, 360 S.W.3d 207,
217 (Ky. 2012) (quoting California v. Trombetta, 467 U.S. 479, 489 (1984)).
11
Merely looking at the shell casings revealed nothing beyond the caliber and
type of ammunition. There was nothing that distinguished these three casings
from any other spent shell casings recovered by police and stored in evidence.
As noted above, KSP firearms examiner Pilcher concluded after extensive
laboratory examination that the casings were fired from the same unidentified
gun as most of the shell casings recovered from the two Carneal Road
shootings. Stokes described the make and model of that gun, admitted he fired
it on Walden Avenue, and claimed Jenkins fired it during the two Carneal Road
shootings. These two witnesses connected the shell casings to the three
shootings, and that connection was vital for the Commonwealth. Preserving
the casings would have been more beneficial to the Commonwealth than to
Jenkins and the destruction provided Jenkins with a claim about the overall
competence of the police investigation.
At the hearing, Jenkins claimed that the destruction of the shell casings
left his expert unable to test critical evidence and those tests might have
proven exculpatory. As the United States Supreme Court made clear:
We have held that when the State suppresses or fails to disclose
material exculpatory evidence, the good or bad faith of the
prosecution is irrelevant: a due process violation occurs whenever
such evidence is withheld. See Brady v. Maryland, 373 U.S. 83
(1963); United States v. Agurs, 427 U.S. 97 (1976). In [Arizona v.]
Youngblood, by contrast, we recognized that the Due Process
Clause “requires a different result when we deal with the failure of
the State to preserve evidentiary material of which no more can be
said than that it could have been subjected to tests, the results of
which might have exonerated the defendant.” 488 U.S. [51, 57
(1988)]. We concluded that the failure to preserve this “potentially
useful evidence” does not violate due process “unless a criminal
defendant can show bad faith on the part of the police.” Id., at 58,
12
 (emphasis added).
Illinois v. Fisher, 124 S. Ct. 1200, 1202 (2004).
We will not disturb the trial court’s finding in this case that the police
conduct lacked bad faith, as the finding was not clearly erroneous. We have
stated:
As an appellate court, we defer to the trial court’s findings of fact
and we do not disturb those findings on appeal unless those
findings are clearly erroneous. CR 52.01. “A factual finding is not
clearly erroneous if it is supported by substantial evidence.”
Hunter v. Hunter, 127 S.W.3d 656, 659 (Ky. App. 2003).
“Substantial evidence is evidence, when taken alone or in light of
all the evidence, which has sufficient probative value to induce
conviction in the mind of a reasonable person.” Id.
Garland v. Commonwealth, 458 S.W.3d 781, 786 (Ky. 2015).
Here, the trial court based its finding of fact that the evidence was not
destroyed in bad faith on substantial evidence. Therefore, the trial court did
not err in denying the missing evidence instruction.
B. Cell Phone Location Evidence
Jenkins argues the trial court erred in admitting cell phone location
evidence. Specifically, Jenkins’s allegation of error centers around the
testimony of Lexington Police Sergeant Tyson Carroll.2 Before trial, Jenkins
filed a motion in limine to exclude cell phone location testimony, arguing
Sergeant Carroll was not qualified as an expert witness and that any testimony
he would give as to cell phone location would be “irrelevant, inadmissible under
KRE 702 and Daubert, and would be more prejudicial than probative.” The
2 Sergeant Carroll is alternatively referred to in the record as both Sergeant and
Detective. For clarity, this opinion uses the Sergeant designation.
13
trial court found that Sergeant Carroll could qualify as an expert and that the
evidence could be admitted at trial.
On direct examination, Sergeant Carroll testified about how he used the
historical cell data. Detective Wilson had given Sergeant Carroll two sets of cell
phone records and background information about the case. Wilson gave
Carroll time parameters for each of the three shootings. Carroll then created
three maps that included multiple towers in the vicinity of each of the
shootings. On these maps, Carroll put notations with times the two phones
accessed the towers.
Carroll testified about the limitations of historical data analysis. He
explained that a tower in a city will have a smaller “footprint” than a tower in
the country. He stated that there are ways to determine the size of the
footprint, but that he could not do so. During direct examination, the
Commonwealth asked Carroll about movement from the scene of the first
shooting, Carroll was careful to explain that the phone’s particular travel could
not be plotted using the data from the towers. Rather, Carroll explained that
he could only tell that the phones were moving from the north side of the map
to the south side. Carroll testified that he could not determine the particular
location of either phone with any granularity.
Sergeant Carroll’s testimony and maps provided the Commonwealth with
means to challenge Jenkins’s alibi that he was across town in his apartment at
the Metropolitan apartment complex at the time of the shootings. Based on
Sergeant Carroll’s testimony and maps, Jenkins’s phone was not connected
14
with towers near his apartment when the shootings occurred. Further seeking
to buttress Stokes’s testimony that he and Jenkins were together during the
shootings, the Commonwealth also offered Sergeant Carroll’s testimony and
maps to show the two men’s cellphones connected to the same cell towers near
the shooting locations at the critical times in question.
The Commonwealth also asked Carroll questions regarding the movement of
the two phones between the second and third shootings. The Commonwealth
asked if the two phones “separated” between those shootings. Carroll asserted
that they did not appear to separate at any point. The Commonwealth then
asked if the phones were together the entire time, to which Carroll responded,
“yes.” These are the specific questions and answers Jenkins now claims
resulted in error. The defense raised no objection to either of these questions
or answers at trial. During cross examination, defense counsel had Carroll
reiterate that he could only provide a general area for the location of the phone
using the historical cell tower data. On cross, Carroll also testified that he
could not show movement of a phone based on a “handoff” from one tower to
another. Rather, he needed more than two data points to indicate movement of
the phone. He testified that, using multiple data points, he could demonstrate
a phone’s general movement, but could not narrow that movement to a
particular street.
Jenkins asserts that he preserved this claim of error through his motion
in limine seeking to exclude cell phone tower data on the basis of relevancy,
KRE 702 and Daubert, and that it would be more prejudicial than probative.
15
The trial judge overruled the motion in limine seeking to exclude the cell tower
data.
As for motions in limine preserving errors for appellate review, we have
recognized that “KRE 103(d) modified, but did not repeal, the contemporaneous
objection rule of RCr 9.22 . . . .” MV Transp., Inc. v. Allgeier, 433 S.W.3d 324,
331 (Ky. 2014). We made clear that “the critical point in preservation of an
issue remains: was the question fairly brought to the attention of the trial
court.” Id. (citing Davis v. Commonwealth, 147 S.W.3d 709, 722–23 (Ky. 2004)
(“Where a party specifies [in its motion in limine] what evidence should be
suppressed and why, the question has been ‘fairly brought to the attention of
the trial court’ and the trial court's ruling preserves the issue for appeal.”)). In
Lanham v. Commonwealth, 171 S.W.3d 14 (Ky. 2005), we held that while a
motion in limine is a proper means for bringing evidentiary issues to the trial
court’s attention, the contemporaneous objection rule was still alive and well.
Id. at 20–21. We also held in Lanham:
This is not to say, however, that a blanket motion in limine is
sufficient to preserve an error for appellate review. As Tucker [v.
Commonwealth, 916 S.W.2d 181 (Ky.1996) (overruled on other
grounds by Lanham, 171 S.W.3d 14)] correctly observed:
An objection made prior to trial will not be treated in
the appellate court as raising any question for review
which is not strictly within the scope of the objection
as made, both as to the matter objected to and as to
the grounds of the objection. It must appear that the
question was fairly brought to the attention of the trial
court . . . . One claiming error may not rely on a broad
ruling and thereafter fail to object specifically to the
matter complained of.
Id. at 183.
16
 Because defense counsel did not make a contemporaneous objection
regarding Carroll’s testimony about which Jenkins now complains, we must
determine whether Jenkins’s motion in limine preserved the alleged error for
our review. As noted, for a motion in limine to preserve an issue for appeal, it
must bring the particular error argued on appeal to the attention of the trial
court “both as to the matter objected to and as to the grounds of the objection.”
Tucker, 916 S.W.2d at 183.
In his motion in limine, Jenkins first argued that the cell tower location
evidence was not relevant. According to Jenkins’s argument, “[a] ping is only
relevant if the Commonwealth proves that a cell phone connects to the
geographically nearest tower.” Jenkins asserted that because there are several
factors that determine which tower a cell phone connects to, the
Commonwealth could not show that phones always connect to the nearest
tower, rendering the cell tower information irrelevant. The trial court overruled
the motion, finding that the historical cell phone tower data was relevant.
Jenkins does not make any relevancy arguments concerning the historical cell
tower data in this appeal.
Next, in his motion in limine, Jenkins argued that cell tower location
evidence failed to meet the requirements of KRE 702 (regarding scientific
evidence) and Daubert. He argued that the premise underlying cell phone
location data testimony is “misleading, if not false.” The trial court overruled
his motion on these grounds. Jenkins did not appeal on the basis of KRE 702
or Daubert.
17
Jenkins’s third argument in his motion in limine regarding the
introduction of historical cell phone tower data was that Sergeant Carroll was
not qualified to offer an expert opinion about the cell phone location data.
Jenkins claimed Carroll lacked the appropriate qualifications to be named an
expert on the topic, as he was “not equipped to testify about how likely a phone
is to ping to the closest geographic tower” or “whether the phones in question
in this case were pinging to the geographically closest tower . . . .” The trial
court overruled Jenkins’s motion on these grounds as well—and Jenkins does
not raise Carroll’s qualifications as an expert witness on appeal.
Jenkins’s final argument in his motion in limine was the cell tower
location evidence is more prejudicial than probative. He asserted that the
limited probative value of the evidence was outweighed by the danger of undue
prejudice. He asserted the jury “would necessarily speculate on whether a ping
hit the geographically closest tower . . . .” Jenkins argued that to allow the jury
to engage in such speculation would deprive Jenkins of his right to due
process. The trial court denied Jenkins’s motion in limine on this ground as
well. Just as the other claims detailed above, Jenkins does not raise an
argument on appeal regarding any alleged undue prejudice engendered by the
use of the historic cell tower data.
This Court has held “[a]n appellate court ‘is without authority to review
issues not raised in or decided by the trial court.’” Ten Broeck Dupont, Inc. v.
Brooks, 283 S.W.3d 705, 734 (Ky. 2009) (quoting Reg’l Jail Auth v. Tackett, 770
S.W.2d 225, 228 (Ky.1989)). In Brooks, we held that “the objections made in
18
the motion in limine, that the evidence was ‘irrelevant and unduly prejudicial,’”
did not support the “new argument” brought before this Court. Id. Since the
issue had not been presented to the trial court, it was not preserved and we did
not address it. Id.
In this case, Jenkins brings a “new argument” on appeal. We rejected a
new argument that was never presented to the trial court being argued for the
first time on appeal in Brooks. Jenkins argues to this Court—for the first
time—that Sergeant Carroll’s testimony regarding Jenkins’s and Stokes’s
phones not “separating” between the last two shootings was not in line with
our holding in Holbrook v. Commonwealth, 525 S.W.3d 73 (Ky. 2017).
In Holbrook, we held:
the admission of historical cell-site evidence to establish an
individual’s location is a matter to be assessed carefully. Critically,
Special Agent Horan’s testimony expressly identified limitations in
the scientific techniques he employed. Specifically, when asked
about a particular call made by Bryant, Special Agent Horan
explained that he was unable to identify the exact boundaries of
the phone’s “footprint” during the time of that call. Further, Special
Agent Horan’s testimony only established the general locations of
the callers, rather than asserting the callers were at a fixed
position.
Id. at 82. Here, just as in Holbrook, Carroll testified as to the limits of
historical cell phone tower data. He explained to the jury that the phones’
particular travel could not be plotted using the data from the towers. Rather,
Carroll stated he could only tell that the phones were moving from the north
side of the map to the south.
Carroll further testified that he could not determine the particular
location of either phone with any granularity. While Carroll did say that
19
Jenkins’s and Stokes’s phones did not appear to separate at any point and
answered “yes” in response when the Commonwealth inquired if the phones
were together the entire time, these were fleeting statements within the whole
of Carroll’s testimony. On cross examination, defense counsel had Carroll
reiterate that he could only provide a general area for the location of the phone
using the historical cell tower data—something he was careful to point out on
direct as well. On cross, Carroll also testified that he could not show
movement of a phone based on a “handoff” from one tower to another. Rather,
he needed more than two data points to indicate movement of the phone. He
testified that, using multiple data points, he could demonstrate a phone’s
general movement, but could not narrow that movement to a particular street.
Even assuming Carroll’s testimony exceeded the boundaries outlined in
Holbrook, any resulting error would have been harmless given the context of
the rest of Carroll’s testimony.
As discussed, however, Jenkins’s argument on appeal is based on
different grounds than his motion in limine. Just as in Brooks, this argument
is not preserved. As to this Court’s review for palpable error, we have held:
“Absent extreme circumstances amounting to a substantial miscarriage of
justice, an appellate court will not engage in palpable error review pursuant to
RCr 10.26 unless such a request is made and briefed by the appellant.”
Shepherd v. Commonwealth, 251 S.W.3d 309, 316 (Ky. 2008). Jenkins did not
request palpable error review and there are no extreme circumstances
amounting to a substantial miscarriage of justice herein.
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C. Directed Verdict Motion as to PFO
Jenkins’s final argument is that the trial court erred in failing to grant
his motion for a directed verdict on the PFO charge, as the Commonwealth
failed to prove that Jenkins had been sentenced to a term of one year or more
imprisonment. Jenkins preserved this claim at trial by moving for a directed
verdict on the charge, which the trial court denied.
Under the relevant jury instructions, to convict Jenkins of being a PFO,
the jury had to find that he “was convicted of a felony offense by final
Judgment of the Third Judicial Circuit Court in Michigan on April 22, 2013,”
and that “he was sentenced to a term of imprisonment of one (1) year or more
for each conviction.” These jury instructions were in line with KRS 532.080,
which reads, in pertinent part:
(2) A persistent felony offender in the second degree is a person
who is more than twenty-one (21) years of age and who stands
convicted of a felony after having been convicted of one (1)
previous felony. As used in this provision, a previous felony
conviction is a conviction of a felony in this state or conviction
of a crime in any other jurisdiction provided:
(a) That a sentence to a term of imprisonment of one (1) year
or more or a sentence to death was imposed therefor . . . .
Jenkins pleaded guilty in Michigan to attempt to carry a concealed
weapon. Under Michigan Compiled Laws §750.227(3), carrying a concealed
weapon is a “felony, punishable by imprisonment for not more than 5 years, or
by a fine of not more than $2,500.00.” Pursuant to Michigan’s attempt statute:
2. If the offense so attempted to be committed is punishable by
imprisonment in the state prison for life, or for 5 years or more, the
person convicted of such attempt shall be guilty of a felony,
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punishable by imprisonment in the state prison not more than 5
years or in the county jail not more than 1 year;
3. . . . in no case shall the imprisonment exceed ½ of the greatest
punishment which might have been inflicted if the offense so
attempted had been committed.
These statutes make it clear that the crime for which Jenkins pleaded guilty
was a felony, punishable by up to two and a half years’ imprisonment.3
With the above facts undisputed by the parties and clear in the record,
the disputed issue remains whether Jenkins’s Michigan felony conviction
qualifies for application of KRS 532.080. Both parties request we resolve an
apparent conflict between two of this Court’s opinions, James v.
Commonwealth, 647 S.W.2d 794 (Ky. 1983), reversed on other grounds by
James v. Kentucky, 104 S. Ct. 1830 (1984), and Commonwealth v. Derringer,
386 S.W.3d 123 (Ky. 2012).
James had entered a guilty plea in Nebraska to felony forgery and was
sentenced to two years’ probation. James, 647 S.W.2d at 796. James argued
to this Court that the Nebraska conviction did not meet KRS 532.080(2)’s
requirement, as he was not sentenced to a term of imprisonment of one year or
more. Id. In James we noted that:
The Commentary accompanying this subsection in the Kentucky
Penal Code, Final Draft November 1971, p. 347, is as follows:
3 In Kentucky, carrying a concealed deadly weapon absent a prior felony
conviction is a Class A misdemeanor under KRS 527.020. Pursuant to KRS 506.010,
when the crime attempted is a Class A misdemeanor, it is reduced to a Class B
misdemeanor. Therefore, the crime to which Jenkins pleaded guilty would have been
a Class B misdemeanor in Kentucky, and the term of imprisonment he received could
not have exceeded 90 days. KRS 532.090(2).
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“Subsection (2) sets forth a definition of a previous
felony conviction. It requires in Subdivision (a) that the
previous offense must have been accompanied by a
sentence of imprisonment for one year. This
requirement seeks to account for the possibility of
conviction from a state which has a distinction between
felony and misdemeanor that is different from that used
in this state. Thus, although such conviction is for an
offense designated in that other state as a
misdemeanor, it can be treated as a felony for
purposes of this statute if it carried a penalty of one
year or more.” (Emphasis added.)
Id. We used our interpretation of the Commentary to hold that “the statute
does not require actual imprisonment.”
We emphasize that, while the statute does not require actual
imprisonment, it does require proof of the imposition of a sentence of one year
or more, even if the sentence was then probated. In Kentucky, sentences are
first imposed and then probated. This is not the case in all states. As the
Commonwealth points out,
James does not indicate that the trial court in Nebraska ever set a
term of imprisonment. (It would not have, because, there, at the
time of probation revocation, the trial court imposes a new
sentence that it could have imposed at the time of the original
conviction. Neb. Rev. Stat. §29-2268(1); 1971 Neb. Laws LB 680,
§23.)
(Emphasis added.) This differing procedure in Nebraska means that James
was sentenced to two years’ probation—not sentenced to two years’
imprisonment and then had that sentenced probated. This procedure is more
akin to our pretrial diversion, which we will take up below when analyzing our
Derringer opinion. James was not sentenced to any term of imprisonment
related to his Nebraska forgery conviction. As discussed below, the
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Commonwealth failed to present proof in support of Jenkins’s second-degree
PFO conviction that he was ever sentenced to any term of imprisonment by the
Michigan court.
In James, this Court also considered the fact that “the offense in
Nebraska was a forgery, which is a felony in this state.” Id. That consideration
is in no way part of the statutory framework and cannot become part of the
analysis of this issue. KRS 532.080(2) provides, in pertinent part:
As used in this provision, a previous felony conviction is a
conviction of a felony in this state or conviction of a crime in any
other jurisdiction provided:
(a) That a sentence to a term of imprisonment of one
(1) year or more or a sentence to death was imposed
therefor . . . .
Clearly, under KRS 532.080, the standard for using a conviction from another
jurisdiction is not that the crime would have been a felony under Kentucky law,
but that the other jurisdiction imposed “a sentence to a term of imprisonment
of one (1) year or more or a sentence to death.” Id. Whether a crime from
another jurisdiction is a felony or a misdemeanor in this Commonwealth makes
no difference in determining whether it can be used for a PFO conviction. The
requirement is whether the defendant was sentenced to one (1) year or more in
the other jurisdiction.
In Derringer, 386 S.W.3d at 128, the Commonwealth argued “that the
focus of the PFO statute is on the prior felony conviction, not the imposition of
a sentence for that prior conviction.” In that case, the Commonwealth argued
“the requirement that a sentence of one year or more or a death sentence be
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imposed is intended merely to ensure the previous crime was a felony; and the
‘intent and spirit of the statutory phrase is not about the final determination of
the length of the sentence.’” Id. We rejected that argument, holding “[t]he
plain language of KRS 532.080(2) provides specific requirements for previous
felony convictions that must be met before a defendant can be indicted for
being a PFO 2. One of the requirements is the imposition of a sentence to a
term of imprisonment of one year or more or a death sentence.” Id.
As we stated in Derringer, “[w]e are not at liberty to read this prerequisite
out of the statute.” We reaffirm our holding in Derringer: “If a sentence of one
or more years' imprisonment or death has not been imposed, a felony
conviction cannot meet the requirements of a previous felony conviction under
the PFO statute; and the conviction cannot form the basis of a PFO charge.”
Id.
This Court did not expressly overrule James in Derringer. However, we
do so today. To the extent that James allowed a prior out-of-state conviction to
serve as the basis for a PFO in which the individual was not sentenced to
imprisonment for a year or more or death, it is overruled. “In cases involving
statutory interpretations, the duty of the [C]ourt is to ascertain and give effect
to the intent of the General Assembly. We are not at liberty to add or subtract
from the legislative enactment or discover meanings not reasonably
ascertainable from the language used.” Commonwealth v. Harrelson, 14
S.W.3d 541, 546 (Ky. 2000) (citation omitted). This Court failed to follow our
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guideposts of statutory interpretation in James and that portion of the opinion
cannot stand.
Turning back to the case at hand, we must determine if the certified
documents from Michigan the Commonwealth presented during Jenkins’s
penalty phase to support the PFO charge provided proof that the Michigan
court had imposed a sentence of one year or more imprisonment. We conclude
under the proof presented in the documents in this case, it did not.
The first document titled “Settlement Offer and Notice of Acceptance” was
a plea agreement signed by the prosecutor, defense attorney, and Jenkins.
This document was never signed by the judge. It was marked with a check for
“Sentence Agreement” and listed “2 ½ years” under the heading “Statutory
Maximum Penalty.” There is a hand-written notation of “Probation, 5 Days
AWF, and HYTA if eligible.” The “HYTA” listed on the plea agreement document
refers to the Holmes Youthful Trainee Act. Both parties characterize the HYTA
as creating circumstances comparable to Kentucky’s diversion statute, KRS
533.250, with the relevant similarity being the offense is not a felony until and
unless diversion is revoked.
The second document from the Michigan court is titled “Order of
Conviction and Sentence” has a checkmark beside “Probation” and a
handwritten notation reading, “1 o/HYTA.” Further down the page beside the
word “RECOMMENDATION” is handwritten “5 Days AWF.”
The third document from Michigan is entitled “Order of Probation
(Felony)-Non-PFO.” On this document, beside the word “Term” is a
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handwritten note reading, “1 yr o/HYTA.” In addition to a large section of
boilerplate language that imposes varying conditions often seen in Kentucky
sentencing orders, there is “Section 17” with a box labelled “Other” that is
marked. Next to the box, a handwritten note reads “5 DAYS AWF within 30
days.”
The final document the Commonwealth presented from the Michigan
court is titled “Order of Conviction and Sentence.” It has a handwritten note
reading, “Prob Viol.” Under “Recommendation,” it also contains a handwritten
notation reading, “Prob. Closed. Rvok HYTA.”
After a thorough review of the documents, the only reference to
imposition of a sentence of a year or more was that 2 ½ years was written
under “statutory maximum sentence” in the “Settlement Offer and Notice of
Acceptance” that was never signed by the judge. We were unable to locate
where a sentence of 1 year or more or death was actually imposed. The
documents do not designate what portion of or if all the maximum possible
term of imprisonment was imposed. As the documents stand, the required
language for use as a prior felony conviction in Kentucky for PFO purposes is
lacking.
We note that the version of Michigan Compiled Laws 762.11(1) in effect
when Jenkins committed the offense provided: “if an individual pleads guilty to
a criminal offense committed on or after the individuals seventeenth birthday
but before his or her twenty-first birthday, the court . . . may without entering a
judgment of conviction . . . assign that individual the status of youthful trainee.”
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(Emphasis added.) Under this statute, the court was not required to enter a
judgment of conviction. Therefore, we assume that Jenkins’s designation as a
youthful trainee explains the absence of an order fixing his sentence.
It is unclear why the Commonwealth did not present a certified copy of a
judgment of the Michigan court sentencing Jenkins after his probation was
revoked. This court is bound to follow the evidence presented at trial and a
judgment sentencing Jenkins to one year or more or the death penalty by the
Michigan court is missing from the record in this trial. The missing element in
the Michigan documents is the final judgment imposing a sentence. The last
order in this case reflects that probation was revoked and the case was closed
but fails to demarcate the final sentence imposed by the court. Applying our
decision in Derringer, we conclude that the documents’ failure to clearly
indicate a sentence of one year or more or death leaves the Michigan felony
unable to support a PFO sentence enhancement in Kentucky. The
Commonwealth failed to introduce evidence that Jenkins had “a sentence to a
term of imprisonment of one (1) year or more . . . imposed.” KRS 532.080(2)(a).
Therefore, the trial court erred in allowing the jury to consider this Michigan
conviction to find Jenkins to be a PFO.
As the trial court should have dismissed the PFO charge or granted
Jenkins’s directed verdict motion, we reverse Jenkins’s conviction for being a
second-degree PFO, vacate his sentence, and remand to the Fayette Circuit
Court for resentencing. As we have stated, “in those cases where the only
reversible error relates to the PFO charge, there is a sentence on the underlying
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charge, limiting the necessary proceedings on remand.” Montgomery v.
Commonwealth, 320 S.W.3d 28, 49, n.4 (Ky. 2010).
III. CONCLUSION
For the foregoing reasons, we affirm in part, reverse and vacate in part,
and remand to the trial court. Specifically, we affirm Jenkins’s convictions for
first-degree assault, eight counts of first-degree wanton endangerment, and
tampering with physical evidence; but, we reverse his second-degree PFO
conviction, vacate his sentence, and remand for resentencing consistent with
this opinion.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Robert Chung-Hua Yang
Assistant Public Advocate
COUNSEL FOR APPELLEE:
Daniel Jay Cameron
Attorney General of Kentucky
James Daryl Havey
Assistant Attorney General
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