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.”
22-KP-443 1 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.
22-KP-443 2 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
22-KP-443 3 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
22-KP-443 4 “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.
22-KP-443 10 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
22-KP-443 11 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
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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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