State of Louisiana Versus Kevin Jenkins

STATE OF LOUISIANA NO. 22-KP-443

VERSUS FIFTH CIRCUIT

KEVIN JENKINS COURT OF APPEAL

STATE OF LOUISIANA

ON APPLICATION FOR SUPERVISORY REVIEW FROM THE
TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 21-5626, DIVISION "G"
HONORABLE E. ADRIAN ADAMS, JUDGE PRESIDING

February 27, 2023

STEPHEN J. WINDHORST
JUDGE

Panel composed of Judges Jude G. Gravois,
Stephen J. Windhorst, and Hans J. Liljeberg

AFFIRMED; REMANDED FOR CLARIFICATION OF SENTENCING
RESTRICTIONS
SJW
JGG
HJL

COUNSEL FOR PLAINTIFF/RESPONDENT,
STATE OF LOUISIANA
Thomas J. Butler

COUNSEL FOR DEFENDANT/RELATOR,
KEVIN JENKINS
Zachary W. Orjuela

WINDHORST, J.

Defendant, Kevin Jenkins, seeks review of his May 31, 2022 misdemeanor

conviction of domestic abuse battery following a bench trial. For the following

reasons, we affirm his conviction and sentence and remand the matter for

clarification of defendant’s sentence as to the restriction of benefits.

PROCEDURAL HISTORY

On February 23, 2022, the Jefferson Parish District Attorney filed a bill of

information charging defendant, Kevin Jenkins, with domestic abuse battery in

violation of La. R.S. 14:35.3. Defendant pled not guilty.

On May 27, 2022, the State filed a notice of intent to use and introduce 911-

telephone calls and recordings into evidence. In that motion, the State asserted that

the 911 calls and recordings maintained by the Jefferson Parish Sheriff’s Office

made on October 16, 2021, are self-authenticating certified records of a regularly

conducted business activity. The State asserted that the copy of the 911 calls, the

recordings, and the event history report satisfy the requirements of La. C.E. art.

803(6) and La. R.S. 13:3733 and are self-authenticating pursuant to La. C.E. art.

902(11). The State attached to the motion a certificate of authenticity relative to the

911 records signed by Lieutenant LaShonda Woodfork.1 Based on this, the State

gave notice of its intent to introduce the 911 calls, recordings, and the report at trial.

On May 31, 2022, the day of trial, defendant made an oral motion to quash the

bill of information based on the absence of the victim at trial and the denial of his right

to confront his accuser. Defendant argued that the State was going to rely on hearsay

evidence (the 911 call) to convict him, and that the State had to produce the victim

because she was available and he had right to cross-examine her. The State responded

that the 911 call was non-testimonial and did not constitute hearsay, but that if it did,

1 The Certificate stated, “I am the designated representative for the Custodian of Records. I certify that
these records are recorded, created, and kept in the ordinary course of business at the Kenner Police
Department’s 911 Communication District. I further certify that such records are true and correct.”

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it would be admissible under the business records exception. The trial court denied

the motion to quash.

After denying the motion to quash, the case proceeded to a judge trial, and the

trial judge found defendant guilty as charged. On June 28, 2022, the trial court

sentenced defendant to six months imprisonment in the parish prison. Defendant

timely filed a writ application, challenging his conviction by arguing that the 911

call admitted at trial was hearsay and violated his right to confrontation.

EVIDENCE

Defendant was convicted of domestic abuse battery based on an incident that

occurred on October 16, 2021. Authorities first became aware of the incident when

the victim, Robin Shifter, called 911. During that call, the victim identified herself

and provided her address. She relayed that she was “just hit on by [her] baby daddy,”

and identified him as Kevin Jenkins. She stated that he hit her on the left side of her

jaw and cracked some of her teeth on the right side; that blood was coming out of

her mouth; and that he punched her in her leg three times. She also stated that

defendant was no longer there and that she was pregnant. During the call, she

provided details regarding the clothes defendant was wearing and the vehicle he was

driving when he left.

Officer Gabriel Marquez with the Kenner Police Department, who responded

to the 911 call, testified at trial to the following. Upon arrival to the crime scene, he

met the victim and saw that she was upset. He noticed that the left side of her face

was red. Officer Marquez viewed photographs of her injuries taken at the scene of

the crime, and testified that the photographs accurately depicted the victim’s injuries

and her version of events. The photographs showed the victim’s side profile where

she indicated she was struck, the jawline area of the left side of her face where she

said she was struck, and bruising on her leg. Officer Marquez also testified that the

victim told him that defendant was the perpetrator.

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Defendant testified at trial as follows. He and the victim dated for many years,

but they were no longer together. He continued to live with the victim because of

the three children they have together. At the time of the incident, defendant had a

new girlfriend. The victim and his girlfriend became pregnant around the same time.

Defendant asserted that this made the victim angry, and that she “was doing

everything to sabotage” him. Defendant denied striking or kicking the victim on the

night in question.

The State introduced recorded phone calls made by defendant while he was in

jail. No testimony was presented as to who was on the other end of the phone, but

the conversation indicates that the other person was the victim in this matter.

During one call, defendant told the victim to come get him and to drop the

charges. She replied that he told her he would kill her and her kids, and defendant

denied it. She asked, “Drop the charges so you can do this again?” She said she was

trying to make sure she was safe, and that defendant did not care “about the life in

[her] stomach.” Defendant told her he did care, and again asked her to drop the

charges. She refused and responded that she is not “about to put [herself] in another

situation” and that this was not the first time he “hit on” her.

Defendant told her to call his family and that they would ensure he does not

go around her. The victim responded that his family told her to make sure that he

goes to jail and that he should have already been locked up because he should not be

hitting her. She asserted that she was trying to take care of defendant for his

birthday, but instead he hit her. Defendant said that he was sorry. They again

discussed the incident, and both acknowledged the children’s presence in the room.

The victim said he told them to shut up while in the kitchen and in “the room.”

Defendant denied this and said he told them their mom was okay. The victim replied

that the children were scared that he would also beat them. The victim then stated

that defendant hit her in front of her baby. Defendant apologized, but the victim

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responded that he is only sorry because she stopped him. Defendant stated that he

messed up. The victim said that she has children and cannot care for them if she is

dead. The victim was obviously still in fear of defendant.

LAW and ANALYSIS

Defendant asserts that the trial court committed a prejudicial error in admitting

the 911 call containing hearsay and testimonial statements without an opportunity

for cross-examination of the victim.

Confrontation Clause

Defendant asserts that the trial court should not have admitted the 911 call

because the substance of the call was “testimonial” in nature, and therefore violated

his rights under the Confrontation Clause of the Sixth Amendment, which guarantees

the right of a criminal defendant “to be confronted with the witnesses against him.”

The United States Supreme Court has held that this guarantee includes the right to

cross-examine witnesses. Cruz v. New York, 481 U.S. 186, 189, 107 S.Ct. 1714, 95

L.Ed.2d 162 (1987); State v. Harris, 15-485 (La. App. 5 Cir. 4/13/16), 190 So.3d

466, 479, writ denied, 16-902 (La. 5/12/17), 220 So.3d 746.

In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177

(2004), the United States Supreme Court held that the Confrontation Clause bars

“admission of testimonial statements of a witness who did not appear at trial unless

he was unavailable to testify, and the defendant had had a prior opportunity for cross-

examination.” The Court held that the admission of a recorded statement made by

the defendant’s wife during interrogation violated the defendant’s right under the

Confrontation Clause because the statement was hearsay, because it was testimonial

in nature, and because his wife did not testify at trial due to the state’s marital

privilege. Id.

In Davis v. Washington, 547 U.S. 813, 817, 126 S.Ct. 2266, 2271, 165

L.Ed.2d 224 (2006), the United States Supreme Court considered the meaning of

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“testimonial statements” in the context of the Confrontation Clause, wherein the

victim called 911 to report a domestic altercation with her ex-boyfriend. During the

call, the victim identified her attacker and described the specifics of the ongoing

assault in response to the 911 operator’s questions. Id., 547 U.S. at 817-18, 126

S.Ct. at 2271. The trial court admitted the recording of the 911 call into evidence

despite the fact that the victim did not testify at trial. Id., 547 U.S. at 822, 126 S.Ct.

at 2273-74. The Davis Court explained that the recordings were non-testimonial in

nature and therefore admissible because they were made to enable police assistance

to meet an ongoing emergency. Id. It also stated that recordings are testimonial

when the circumstances objectively indicate there is no ongoing emergency, and the

primary purpose of the interrogation is to establish or prove past events potentially

relevant to later criminal prosecution. Id.

The Davis Court reasoned that the statements were non-testimonial because

the initial interrogation conducted in a 911 call is ordinarily not designed to prove

some past fact, but to describe current circumstances requiring police assistance.

Davis, 547 U.S. at 827, 126 S.Ct. at 2276. The Davis Court stated that the questions

posed and the circumstances of the call indicated that the primary purpose was to

enable police assistance to meet an ongoing emergency. Another reason the Court

found that the statements were non-testimonial was because the victim’s answers

were frantic and provided over the phone, in an environment that was not tranquil or

even safe. Id.

In determining whether a statement is testimonial or non-testimonial, courts

have applied a three-part inquiry to evaluate the “primary purpose” of the statements.

State v. Payne, 17-553 (La. App. 5 Cir. 10/17/18), 258 So.3d 1015, 1022-1023, citing

Michigan v. Bryant, 562 U.S. 344, 360-361, 131 S.Ct. 1143, 179 L.Ed.2d 93 (2011).

The first consideration is whether there was an ongoing emergency. Id. The

existence of an “ongoing emergency” at the time of an encounter between an

22-KP-443 5

individual and the police is among the most important circumstances in determining

the “primary purpose” of an interrogation. Id. This is a “highly context-dependent

inquiry.” Id. The existence vel non of an ongoing emergency, however, is not

dispositive of whether a statement is testimonial. Id.

The second consideration is the formality of the interrogation. Id. More

formal interrogations are generally indicative of non-emergency situations and

“testimonial” statements being given. Id.

The third consideration is the “primary purpose” of the interrogation based on

the statements and actions of both the declarant and the interrogator. Id. at 1023.

This inquiry examines both parties as reasonable actors in their actual circumstances,

including the severity of the victim’s injuries. Id.

In this case, defendant asserts that the ongoing emergency element present in

Davis is not satisfied here because the alleged emergency ended when defendant left

the house and drove away from the premises before the victim made the 911 call.

We disagree. Although the victim’s statements during the call indicate that

defendant had “just left” when she made the 911 call, the victim had no way of

knowing when or if defendant would return. Testimony at trial revealed that

defendant and the victim lived together. Thus, the victim could have reasonably

believed that defendant was likely to return at any time and could be an ongoing

threat. In addition, there was still an urgency because the victim stated on the call

that she had just been hit, and that she was pregnant with defendant’s child. Further,

most of the information relayed to the 911 operator was necessary to evaluate and

resolve the emergency, to provide the required assistance, and to identify the

perpetrator. Considering these factors, we find that this 911 call involved an ongoing

emergency, even though defendant had recently left the scene.

The second consideration, the formality of the interrogation, also indicates the

call was not testimonial. The interrogation was not in a formal setting such as a

22-KP-443 6

police station but was in a 911 phone call in the immediate aftermath of the incident

and prior to the arrival of any medical services or the police. The questions asked

by the operator related to the well-being and location of the victim, as well as the

whereabouts and identity of the perpetrator. These facts support that the statements

were informal and non-testimonial.

The third consideration, the primary purpose of the statement, further

indicates that the call was not testimonial. The questioning on the call was not part

of an investigation into criminal past conduct. The victim called 911 to request

police assistance and to describe the immediate incident. The victim informed the

operator that she was pregnant, described her injuries to the operator, and provided

details to identify defendant, including the clothing he was wearing and the vehicle

he was driving when he left. All of this indicates that the purpose of the call was to

obtain emergency assistance and protection from further harm.

Based on the foregoing considerations, we find that the 911 call at issue here

was non-testimonial. Non-testimonial statements do not cause the declarant to be a

witness within the meaning of the Sixth Amendment and thus are not subject to the

Confrontation Clause. Harris, 190 So.3d at 480. See also, Payne, 258 So.3d at 1021-

1024 (911 call was nontestimonial because the shooting at issue involved an

“ongoing emergency”; questioning was informal, occurred in the immediate

aftermath of the shooting and before emergency services arrived; and 911 operator’s

questioning was to enable police assistance); State v. Norah, 12-1194 (La. App. 4

Cir. 12/11/13), 131 So.3d 172, writs denied, 14-84 (La. 6/13/14), 140 So.3d 1188

and 14-0082 (La. 6/20/14), 141 So.3d 287 (911 call made in the immediate aftermath

of a shooting at a nightclub that took place in the public and identifying perpetrator’s

vehicle and clothing was non-testimonial). We therefore conclude that the admission

of the non-testimonial 911 call did not violate defendant’s right of confrontation, and

that the trial court did not err in admitting it into evidence.

22-KP-443 7

Hearsay

Defendant argues that it was error to admit the 911 call because it constitutes

hearsay. Hearsay is a statement, other than one made by the declarant while

testifying at the present trial or hearing, offered in evidence to prove the truth of the

matter asserted therein. La. C.E. art. 801(C). Hearsay is not admissible except as

otherwise provided by the Code of Evidence or other legislation. La. C.E. art. 802.

La. C.E. art. 803(2) is the hearsay exception for an excited utterance, which is

“A statement relating to a startling event or condition made while the declarant was

under the stress of excitement caused by the event or condition.” A trial judge’s

determination regarding admissibility of evidence will not be overturned by an

appellate court absent a clear abuse of the trial judge’s discretion. State v. Maize,

16-575 (La. App. 5 Cir. 6/15/17), 223 So.3d 633, 649. Further, while a statement

may constitute inadmissible hearsay, if the statement is merely cumulative or

corroborative, the admission of such statement is harmless error. State v. Francois,

13-616 (La. App. 5 Cir. 1/31/14), 134 So.3d 42, 56, writ denied, 14-431 (La.

9/26/14), 149 So.3d 261.

The victim’s statements in the 911 call fall within the excited utterance

exception to the hearsay rule as provided in La. C.E. art. 803(2). The excited

utterance exception under the hearsay rules requires that there be an occurrence or

event sufficiently startling to render normal reflective thought processes of an

observer inoperative. State v. Lee, 22-1314 (La. 11/16/22), 349 So. 3d 988, 989. In

the instant case, during the victim’s 911 call, she made statements relating to

a startling event while she was under distress caused by a traumatic incident. The

victim had just been beaten with her children present by their father. Considering

the stressfulness of the situation, we find that the victim statements in the 911 call

were excited utterances. See, State v. Jordan, 21-585 (La. App. 4 Cir. 12/21/21),

334 So.3d 417, 423, writ denied, 22-141 (La. 3/2/22), 333 So.3d 834; State v. Green,

22-KP-443 8

50,071 (La. App. 2 Cir. 8/12/15), 174 So.3d 714, 719; State v. Ramirez, 09-530 (La.

App. 5 Cir. 12/29/09), 30 So.3d 833, 846-847.

However, to the extent that any part of the 911 call does not fall within a

hearsay exception, the admission of it was harmless error because it was merely

cumulative and corroborative of other admissible evidence. The Louisiana Supreme

Court has adopted the federal test for harmless error announced in Chapman v.

California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), as refined by Sullivan

v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993), which asks

whether the guilty verdict rendered in this trial was surely unattributable to the error.

State v. Anthony, 17-372 (La. App. 5 Cir. 12/30/20), 309 So.3d 912, 922, writ

denied, 21-176 (La. 10/12/21), 325 So.3d 1067. The admission of hearsay testimony

is harmless error where the effect is merely cumulative or corroborative of other

testimony adduced at trial. State v. Maize, 16-575 (La. App. 5 Cir. 6/15/17), 223

So.3d 633, 653, writ denied, 17-1265 (La. 4/27/18), 241 So.3d 306.

Defendant herein was convicted of domestic abuse battery. La. R.S. 14:35.3

provides that domestic abuse battery is the intentional use of force or violence

committed by one household member or family member upon the person of another

household member or family member. We conclude that the guilty verdict for

domestic abuse battery was surely unattributable to any alleged error in admitting

the 911 call. Officer Marquez testified regarding the victim’s injuries and verified

that the photographs accurately depicted her injuries. He also testified that the victim

informed him that the defendant was the perpetrator, and that the victim’s injuries

were consistent with her version of how the incident occurred.

Considering the foregoing, this assignment of error lacks merit.

22-KP-443 9

ERRORS PATENT REVIEW

On a misdemeanor conviction, defendant is not entitled to an appeal or an

errors patent review. This court, however, has generally conducted an errors patent

review in reviewing a misdemeanor conviction in an application for supervisory

review of the case. State v. Carruth, 94-147 (La. App. 5 Cir. 9/27/94), 643 So.2d

1319, 1322. Although we do not have a complete record in this case, we have

reviewed the available information for an errors patent review. La. C.Cr.P. art.

920; State v. Oliveaux, 312 So.2d 337 (La. 1975).

La. R.S. 14:35.3 C states that at least 48 hours of the sentence imposed shall

be served without the benefit of parole, probation, or suspension of sentence. The

sentencing minute entry reflects that during sentencing, the trial court did not restrict

the benefits of probation, parole, or suspension of sentence for any period of

time. We do not have the sentencing transcript; and thus, cannot confirm that the

benefits were not restricted. Generally, when a trial court does not mention the

restriction of benefits, such conditions are deemed to exist by operation of law under

La. R.S. 15:301.1. State v. Shelby, 18-186 (La. App. 5 Cir. 12/27/18), 263 So.3d

1223, 1228. However, in this case, La. R.S. 15:301.1 does not cure the lack of a

specified time period for the restriction of benefits because the portion of the

sentence to be served without benefits is left to the discretion of the trial court. For

that reason, we remand the case for clarification of defendant’s sentence as to the

restriction of benefits, in accordance with La. R.S. 14:35.3 C, only as it relates to the

restriction of benefits. State v. Vargas, 10-788 (La. App. 5 Cir. 5/10/11), 66 So.3d

29, 40.

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DECREE

Accordingly, for the reasons set forth herein, we remand the matter for

clarification of defendant’s sentence as to the restriction of benefits. In all other

respects, we affirm defendant’s conviction and sentence.

AFFIRMED; REMANDED FOR CLARIFICATION
OF SENTENCING RESTRICTIONS

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SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
www.fifthcircuit.org

NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
FEBRUARY 27, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

22-KP-443
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE E. ADRIAN ADAMS (DISTRICT JUDGE)
THOMAS J. BUTLER (RESPONDENT) ZACHARY W. ORJUELA (RELATOR)

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