• Initial Brief of Appellant


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    • Abstract: Jenkins had. sole possession of a fully-loaded gun after the first shot was. fired, the shot was fired into the officer\'s leg (an ... Jenkins wrestled the gun away from the officer, the officer was on. the ground in some ...

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IN THE SUPREME COURT OF FLORIDA
LOReNZO M. JENKINS,
Appellant,
V8 Case No. 83,727
STATE OF FLORIDA,
Appellee.
APPEAL FROM THE CIRCUIT COURT
IN AND FOR PINELLAS COUNTY
STATE OF FLORIDA
INITIAL BRIEF OF APPELLANT
JAMES MARION MOORMAN
PUBLIC DEFENDER
TENTH JUDICIAL CIRCUIT
DEBORAH K. BRUECKHEIMER
Assistant Public Defender
FLORIDA BAR NUMBER 278734
Public Defender's Office
Polk County Courthouse
P. 0 Box 9000--Drawer PD
.
Bartow, FL 33831
(813) 534-4200
ATTORNEYS FOR APPELLANT
TOPICAL INDEX TO BRIEF
PAGE NO.
STATEMENT OF THE CASE 1
STATEMENT OF THE FACTS 2
SUMMARY OF THE ARGUMENT 18
ARGUMENT 22
ISSUE I
DID THE TRIAL COURT ERR IN FAILING
TO GRANT APPELLANT'S MOTION FOR
JUDGMENT OF ACQUITTAL AS TO FIRST-
DEGREE PREMEDITATED MURDER? 22
ISSUE I1
WAS THE TRIAL COURT INSTRUCTION ON
PREMEDITATED FELONY MURDER ERRONEOUS
AND REVERSIBLE ERROR IN THIS CASE? 47
ISSUE TI1
DID THE TRIAL COURT ERR IN NOT IN-
SURING APPELLANT'S CONSTITUTIONAL
AND RULE RIGHTS TO BE PRESENT AT THE
SITE WHERE PEREMPTORY CHALLENGES TO
PROSPECTIVE JURORS WERE EXERCISED? 53
ISSUE IV
DID THE TRIAL COURT ERR IN OVERRID-
ING THE JURY'S RECOMMENDATION OF
LIFE IN IMPOSING THE DEATH
PENALTY? 58
CONCLUSION 92
CERTIFICATE OF SERVICE 92
i
TABLE OF CITATIONS
0
CASES PAGE NO.
Amado V. State,
585 So. 2d 282 (Fla. 1991) 44
Amazon v. State,
487 So. 2d 8 (Fla. 1986) 63, 65
Anderson v. United States,
170 U.S. 481, 18 S. Ct. 689, 42 L. Ed. 1116 (1898) 42
Andres V. United States,
333 U.S. 740 (1948) 38
Armstrons v. State,
642 So. 2d 730 (Fla. 1994) 5 9 , 60
Atwater v. State,
626 So. 2d 1325 (Fla. 1993) 41
Ballev v. Georqia,
435 U . S . 223 (1978) 38
a Bouwkamp v. State,
8 3 3 P. 2d 486 (Wyo. 1992) 47
Bovd v. California,
108 L. Ed. 2d 315 (1990) 39
Brown v. State,
473 So. 2d 1260 (Fla. 1985) 46
Brown v. State,
526 So. 2d 903 (Fla. 1988) 63, 88, 90
Burch v. State,
522 So. 2d 810 (Fla. 1988) 65, 66
Campbell v. S t a t e ,
577 So. 2d 932 (Fla. 1991 50
Cannadv v. State,
427 So. 2d 723 (Fla. 1983 63, 64, 65
Chaudoin v. State,
362 So. 2d 398 (Fla. 2d DCA 1978) 26
Cochran v. State,
547 So. 2d 928 (Fla. 1989) 84, 8 s
0 ii
TABLE OF CITATIONS (continued)
Coney v. State,
653 So. 2d 1009 (Fla. 1995) 20, 55, 5 6 , 58
Cooser v . State,
581 So. 2d 49 (Fla. 1991) 63, 66, 68, 75, 86, 90
Cox v. State,
555 So. 2d 352 (Fla. 1989) 22
Croft v. State,
117 Fla. 832, 158 So. 454 ( F l a . 1935) 51
Delaware v . Van Arsdall,
475 U . S . 673, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986) 57
Diez v. State,
359 So. 2d 55 (Fla. 3d DCA 1 9 7 8 ) 52
Douqan v. State,
595 So. 2d 1 (Fla. 1992) 44
Enqberq V Meyer,
.
820 P . 2d 70 (Wyo. 1991) 62
Fead v. State,
512 So. 2d 176 (Fla. 1987) 63, 75
Ferry v. State,
507 So. 2d 1373 (Fla. 1987) 64
Fowler v . State,
492 So. 2d 1344 (Fla. 1st DCA 1986) 25, 26, 33
Francis v. State,
413 So. 2d 1175 (Fla. 1982) 53, 5 5 - 5 8
Garcia v . State,
492 So. 2d 360 (Fla.) 56
Gilvin v. State,
418 So. 2d 996 (Fla. 1982) 64, 65, 66, 73
Golden v. State,
629 So. 2d 109 (Fla. 1993) 23
Griffin v. United States,
502 U.S. 4 6 , 112 S. C t . 466 at 471,
116 L. Ed. 2d 371 (1991) 41, 42, 45
iii
TABLE OF CITATIONS (continued]
Gustine v. State,
86 Fla. 24, 97 So. 207 (1923) 26
Hallman v. State,
560 So. 2d 223 (Fla. 1990) 63, 71, 72, 74, 87, aa, 90
Hexzos v. S t a t e ,
439 So. 2d 1372 (Fla. 1983) 64, 73
Holsworth v. State,
522 So. 2d 348 ( F l a . 1988) 63-66, 73, 74, 78
Huddleston v. State,
475 So. 2d 204 ( F l a . 1985) 63, 73
In re Winship,
397 U.S. 358 (1970) 47
Jaramillo v. State,
417 So. 2d 257 (Fla. 1982) 22
Johnson v. Louisiana,
406 U . S . 356 (1972) 38
Johnson v. State,
660 So. 2d 636 (Fla. 1995) 62
Jones v. S t a t e ,
569 So. 2d 1234 (Fla. 1990) 75-77
Rearse v. State,
662 So. 2d 677 ( F l a . 1995) 60
Leary V. United States,
395 U.S. 6 (1968) 39
Lett v. State,
21 Fla. Law Weekly D580 (Fla. 1st DCA March 1996) 55
Lowe v. State,
650 So. 2d 969 (Fla. 1994) 52, 8 3
McArthur v. State,
351 So. 2d 972 (Fla. 1977) 22, 23, 25, 33
McCampbell v. State,
421 So. 2d 1072 (Fla. 1982) 63, 64, 74
iv
TABLE OF CITATIONS (continued)
McCutchen v. State,
96 So. 2d 152 (Fla. 1957) 26, 48-52
Mills v. Maryland,
486 U,S. 367 (1988) 39
Morris v. State,
557 So. 2d 17 (Fla. 1990) 43
Motley v. State,
155 Fla. 545, 20 So. 2d 798 (1945) 52
,
*
229 U.S. 373 (1913) 40
Parker v. Duqqer,
660 so. 2d 1386 (Fla. 1995) 41, 45
Penny v. State,
522 So. 2d 817 (Fla. 1988) 79
Perry v. State,
522 So. 2d 817 (Fla. 1988) 64, 73, 74
Raqer v. State,
587 So. 2d 1366 (Fla. 2d DCA 1991) 25
Rembert v. State,
445 So. 2d 337 (Fla. 1984) 71
Richardson v. State,
437 So. 2d 1091 (Fla. 1983) 6 3 , 65
Rivers v. State,
458 So. 2d 762 (Fla. 1984) 65, 66, 68
Roqers v. State,
660 So, 2d 237 (Fla. 1995) 34, 35
Roqers v. S t a t e ,
511 So. 2d 526 (Fla. 1987) 62
Schad v. Arizona,
115 L. Ed. 2d 555 (1991) 37
Simmons v. South Carolina,
512 U.S. -, 114 S. Ct. 2187, 129 L. Ed. 2d 133 at 142 (1994)
77
V
TABLE OF CITATIONS (continued)
Smith v. State,
414 So. 2d 726 (Fla. 1982) 50
Snvder V. Massachusetts,
291. U.S. 97, 54 S . Ct. 330, 78 L. Ed. 674 (1934) 53
State v. Cherry,
298 N.C. 86, 257 S. E. 2d 551 (1979) 62
State v. Dixon,
283 So. 2d 1 (Fla. 1973) 65-66, 78, 82
State v. Iafornaro,
447 So. 2d 961 (Fla, 1984) 44
State v. Law,
559 So. 2d 187 (Fla. 1989) 23, 25
S t a t e v.
Melendez,
244 So. 2d 137 (Fla. 1971) 56
State v. Middlebrooks,
840 S. W. 2d 317 (Tenn. 1992) 62
State v. Ramsev,
475 So. 2d 671 ( F l a . 1985) 44
Smith,
S t a t e V.
573 So. 2d 306 (Fla. 1990) 51
Stromberq v. California,
283 U.S. 359 (1931) 39, 41, 46, 47
Tedder v. State,
322 So. 2d 908 (Fla. 1975) 21, 63, 71, 72, 84, 86, 90
Terrv v. State,
21 Fla. Law Weekly S 9 (Fla. Jan. 4, 1996) 34
Thompson v. State,
328 So. 2d 1 (Fla. 1976) 66
Thompson V . State,
456 So. 2d 444 (Fla. 1984) 75
Turner v. State,
530 So. 2d 45 (Fla. 1987) 54, 56
vi
TABLE OF CITATIONS (continuedl
Turner v. State,
6 4 5 So. 2 d 444 (Fla. 1 9 9 4 ) 7 6 , 77
Walsh v. S t a t e ,
4 1 8 So. 2 d 1 0 0 0 ( F l a . 1 9 8 2 ) 8 9 , 90
Washinston v. S t a t e ,
432 So. 2d 44 at 4 8 ( F l a . 1 9 8 3 ) 75, 89, 90
Waters v. S t a t e ,
486 So. 2d 614 ( F l a . 5 t h DCA 1 9 8 6 ) 56
Weeks v. S t a t e ,
492 So. 2 d 719 (Fla. 1st DCA 1986) 26
Weltv v. S t a t e ,
402 So. 2d 1 1 5 9 (Fla. 1 9 8 1 ) 6 4 , 6 5 , 73
Wriqht v. State,
5 8 6 So. 2d 1024 (Fla. 1 9 9 1 ) 86
Wuornos v . State,
20 F l a . Law Weekly S 4 8 1 ( F l a . S e p t . 2 1 , 1 9 9 5 ) 62
Yates v. United S t a t e s ,
354 U.S. 2 9 8 ( 1 9 5 7 ) 40
Zant v. Stephens,
456 U.S. 4 1 0 , 1 0 2 S. Ct. 1 8 5 6 , 72 L. Ed. 2d 222 ( 1 9 8 3 ) 61, 62
OTHER AUTHORITIES
F l a . R . C r i m . P . 3.180 53-57
F l a . R . C r i m . P . 3.380 24, 25
B 775.0823(1), F l a . S t a t . (1991) 5 0 , 75
S 7 8 2 . 0 4 ( 1 ) ( a ) , F l a . S t a t . (1991) 1
S 784.04(1)(a)2, Fla. S t a t . (1991) 61
§ 9 2 1 . 1 4 1 ( 5 ) ( d ) , F l a . Stat. ( 1 9 9 1 ) 60
S 9 2 1 . 1 4 1 ( 5 ) ( i ) , F l a . S t a t . (1991) 62
vii
STATEMENT OF THE CASE
On June 23, 1993, an indictment was filed in Pinellas County,
Florida, charging the Appellant, LORENZO JENKINS, with the first-
degree murder of Jeffrey Tackett, a police officer, in violation of
5782.04(1)(a), Fla. Stat. (1991). The death occurred on June 13,
1993 (R4,5). Mr. Jenkins had a jury trial from February 28 through
March 3 , 1994, and was found guilty a8 charged. The Honorable W.
Douglas Baird, Circuit Judge, presided (Tl-l032;R1351). On March
4 , 1994, the penalty phase was conducted; and the jury recommended
life (T1033-1138; R1360). After hearing further arguments as to
the penalty to be imposed on March 25, 1994 (SR817-853), the trial
court overrode the jury's life recommendation and imposed a
sentence of death on April 11, 1994 (R1433-1452, 1612-1658). Mr.
Jenkins timely filed his notice of appeal on May 5 , 1994 (Rl466).
1
STATEMENT OF THE FACTS
A. T r i a l Testimonv
On the evening of June 13, 1993, 19-year-old Amy Walker was
home alone at 672 Poinsettia Condominium, Unit #lo, in Pinellas
County watching television upstairs when she heard clicking or
tapping noises coming from downstairs (T349,350,352,354). She
described the layout of her condo as follows: the second floor had
three bedrooms and two baths; the first floor had a foyer, bath-
room, living room, dining room, kitchen, and backdaor -- which was
seldom used but intact on the day in question -- leading to the
garden; the backyard/garden had trees, bushes, flowers, patio,
lights that are on at night, and a 6 or 7 foot high privacy fence
(T350-352,361,362). The Pinellas Trail runs behind their condo on
0 the other side of the fence (T351). She muted the sound on the
television and could still hear the noises (T353). Me. Walker
called a friend about the noise and then called 911. She spoke
with part-time dispatcher Michelle Stamm (T354,368,371). Ms.
Walker said she was hearing noises from downstairs, but she also
informed the dispatcher that the noises could be caused by an
animal. An animal had gotten into the walls of Ms. Walker's condo
before and made clicking and pounding noises (T354, 3 5 5 ) .
The dispatcher for the Belleair Police Department dispatched
the only Belleair police officer on duty that night -- Officer
Jeffrey Tackett -- at 11:15 p.m. on what the dispatcher termed "an
animal complaint" (T371). The dispatcher noted that Officer
Tackett had come to work at 8 : O O p.m. and had had only one other
2
call prior to the animal complaint call -- a traffic stop (T370).
0 The dispatcher also admitted that there was no tape of the calls
between the communications center and office that night. The sys-
tem had run out of tape, and she was not authorized to change the
tape nor was she obligated to call the matter to anyone's attention
(T369,370).
When Officer Tackett arrived at Ms. Walker's condo a few
minutes later, Ms. Walker spoke to the officer from a window on the
second floor facing the parking lot (T372). He asked if he could
get to the back from there, and Ms. Walker said ''yes" (T356). The
officer went around to the back, and Ms. Walker stayed on the phone
with the dispatcher (T356). Via Officer Tackett's radio, both Ms.
'
Walker (over the phone) and the dispatcher could hear Officer
Tackett say he had someone, a black male suspect at gunpoint, and
he needed backup right away (T356,373). At that point the
dispatcher went on the radio trying to get an officer from the next
local town -- Belleair Bluffs -- to respond, but there was no
response (T373, 374). The dispatcher stopped transmitting except
for emergency air traffic and dialed the phone to call the Belleair
Bluffs police station. When the officer at the Belleair Bluffs
Police Station answered, the dispatcher informed the officer that
Officer Tackett had a suspect at gunpoint and needed backup. That
Belleair Bluffs officer answered the call and asked for directions
over the radio, and the dispatcher passed on directions she was
getting from Ms. Walker (T374,375,441,442). The Belleair Bluffs
officer then notified the Sheriff's Department dispatcher that he
3
was on the way to backup a Belleair officer who had a man at
gunpoint behind one of the buildings (T443). The Belleair Bluffs
officer then switched back to the Belleair channel, and it is at
this point that the Belleair Bluffs officer and the Belleair
dispatcher heard Officer Tackett say his suspect was resisting and
ask for his backup (T375,443). The Belleair Bluffs officer also
heard Officer Tackett say his gun was being taken, whereupon the
Belleair Bluffs officer switched to the Sheriff's Department
channel to advise then the officer was having his gun taken away
and they needed more help right away (T443).
The next thing the Belleair dispatcher heard from Officer
Tackett was: "I'm shot. It's bad. He's got my gun and he shot
me." The dispatcher acknowledged his transmission and called for
medical attention (T375). Ms. Walker could hear the shot through
the condo -- which she believed was about four minutes from when
she first saw the officer, and then she got disconnected from the
dispatcher (T356,357,364). The dispatcher said it was about one
minute from when Officer Tackett says he had a suspect at gunpoint
until he said he is shot (T385). The dispatcher starts making
other calls for assistance -- a helicopter, a K-9 u n i t , and addi-
tional units; plus, the dispatcher's phone starts ringing. When
the dispatcher has to put Ms. Walker on hold, the dispatcher
disconnects Ms. Walker due to a problem with the phone system
(T376, 377)"' Christina Pack, who lived on the other side of the
Another dispatcher showed up for work at this point, but
lost c o n t r o l and started cryinq when she found out what was
happening (T378).
0
Pinellas Trail and behind the condominiums in question, was taking
0 out her garbage at about 11:20 - 11:30 p,m. when she heard a male
Caucasian voice say, "put it down, put it down now, put it down."
About three seconds later she heard a gunshot (T393-396). Ms. Pack
believed the voice was about 150 to 200 feet away (T396). Another
person -- a neighbor of Ms. Walker's in unit # 8 -- also heard a
shot. When she stuck her head out the back door, she could hear a
man screaming and crying (T429-431). Both ladies called 911 (T397,
431).
The Belleair Bluffs officer took a wrong turn and was delayed
in getting to 672 Poinsettia (T444). The Belleair Bluffs officer
arrived at the scene at the same time as the Belleair Beach officer
arrived. They asked Ms. Walker, who was still at the second-story
window at the front of the condo, where the Belleair officer was;
and she pointed to the rear of the building (R444). The two offi-
cer ran to the back af the building with their weapons drawn and
found Officer Tackett's lit flashlight on the ground. A neighbor
came out and said he had heard a shot to the north, so the officers
ran about three buildings to the north.2 Hearing and seeing
nothing, they went back to Ms. Walker's unit where they met with a
sergeant from the Largo Police Department. The Largo officer
informed them that a K-9 officer and dog was on the w a y to help
locate the missing officer (T445,458,463). When the K-9 officer
The neighbor at unit # 8 , immediately next door to #10 to
the south, also stated she told the officers not to go any further
south because the shot had come from the north. She noted that she ..
did not realized that what had occurred was right next door (T434).
5
and dog arrived from the Largo Police Department and was told to
locate the missing officer, the K-9 officer went behind Ms.
Walker's condo with the intent of going north based on what people
were telling him. The dog, however, alerted to the south and imme-
diately located Officer Tackett (T474-476).
The lighting conditions behind unit #10 were described differ-
ently by various officers: The Belleair Bluffs officer described it
as being very dark in the back with one very dim street light; he
never saw Officer Tackett on the ground or the damage to the rear
French doors (T446). The K-9 officer said there were areas of
light and darkness behind the condo -- "It's very dark. There are
trees overhanging it. There's fences, there's plants there. At
the same time, there are also landscaping lights and things like
that which give you kind of a blinding effect so that it is
difficult to see back there. If you look here, it's very lit and
over here, very dark and your vision, it's hard to adjust back
there. 'I .
(T476) Another Largo Police officer described the
lighting as very poor with a lot of vegetation (T479). It is to be
noted that Officer Tackett was dressed in a dark uniform (T467).
Once the K-9 officer located Officer Tackett, he informed the
other officers at the scene; but he also advised them to take cover
and be careful. The information the officers had been receiving
was sketchy and erroneous; they had been lead to believe this situ-
ation involved domestic violence. The K-9 officer saw the damage
to the French doors at the rear of the condo not far from where
Officer Tackett was and showed the damage to the Largo sergeant.
6
Both officers believed the hole in the French door was caused by a
bullet and Officer Tackett had been shot by someone inside the
condo (T467,477,478).
TWO of the first officers to see Officer Tackett immediately
believed Officer Tackett to be dead (T467,480). Officer Tackett
was described as being slightly keeled over to his right side, his
left arm was draped up over his chest, his left leg was bent at the
knee, his right leg was straight, and his right arm was out with
the palm up (T480). The expert in blood stain pattern analysis and
reconstruction gave her opinion that Officer Tackettwas lying down
when shot. This conclusion was based on the fact that the
bloodshed would be instantaneous and there was no downward blood
flow at all on the pants or on the leg (T845,865,866). The expert
also believed Officer Tackett had to be on his right side inunedi-
ately upon being wounded -- there had to be some constriction of
the blood flow from the femoral artery because there was no pro-
jection of blood, no spurting of blood, and no downward flow of
blood. Immediately after impact, Officer Tackett had to be on his
right side or the expert would have found gushing (R866). In her
opinion, Officer Tackett did not move while he was bleeding (T867).
The expert also noted that the blood staining on the left hand and
the radio is consistent with Officer Tackett holding the radio in
his left hand (T863).
The paramedic was the first person to touch Officer Tackett's
body (T490). The paramedic noticed the large pool of blood and the
radio in Officer Tackett's left hand. The paramedic rolled Officer
7
Tackett over so that he would be flat on his back, and the
paramedic's partner ripped the officer's shirt open. In the
paramedic's opinion Officer Tackett was dead, but they used EKG
paddles on the chest without success. After verifying that Officer
Tackett was dead, the paramedics left the scene (T489). The
paramedic stated he had just rolled the body over; he did not drag
it around or interrupt the blood. He also noted that he did not
return the body to its original position when he left it at the
scene, and one of the officers stated the picture of the body were
taken after the body had been moved (T486,491).
The medical examiner who performed the autopsy on Officer
Tackett found the cause of death to be a gunshot wound to the thigh
which severed the femoral artery and resulted in acute blood loss.
The femoral artery is the main vessel supplying blood to the leg
(T820). The time of death would have been about four to seven
minutes from the time of being shot (T821). Irreversible shock --
the point where a person is still alive but there is nothing that
can be done to save that person -- would have occurred in two to
four minutes with the shorter period of t i m e being the most likely
due to stress causing the heart to beat faster and the blood to
pump out faster (R821,822). The bullet had entered on the side of
the right thigh towards the back, exited on the inside of the right
thigh slightly higher and more to the frant, and entered i n the
right side of the scrota1 sack where the bullet was located (T809,
812). Thus, the bullet path was from back to front, slightly up-
ward, and from right to left (T825). Officer Tackett would have
8
had to receive immediate attention (within a minute to one and a
half minutes) from someone who knew what they were doing to be of
any assistance; however, that is not to say Officer Tackett would
have survived even with this assistance (T823,826). The medical
examiner noted the femoral artery is on the inside of the leg, so
the bullet from the outside of the leg had to travel through 90% of
the leg before reaching the femoral artery (T830). He also noted
there was "extensive bright red blood present on the right pants
leg" and a lot of blood under the right leg at the scene (T807,833,
834). The medical examiner did not see any smoke o r powder by the
entrance wound of the pants (T808), but he did see some other
recent injuries -- scrape on left elbow, scrapings on right chin,
cut on finger, and bruise on shoulder (T835).
Officer Tackett's handcuffs were missing from the scene, and
Officer Tackett's gun was found on the other side of the privacy
fence between the fence and the Pinellas Trail in a ditch (T565,
591,613,792,793). The gun was fully loaded with a round in the
chamber (T565). The gun could hold up to nine bullets -- eight in
the magazine and one in the chamber. Only one bullet had been
fired, and 8 live bullets were still in the gun (T739). A butcher
knife was also found at the scene in some mulch (T605). That knife
was consistent with the type of t o o l used to pry wood off from the
French doors at the point of attempted entry (T612,616-619,728-
730), and the knife had some paint on it consistent with the paint
of the door (R719-722).
9
Approximately four miles away and about eleven minutes away by
bicycle, Lorenzo Jenkins rode up to his wife's home at 402 Marshall
Street at about 11:30 p.m. on June 13, 1993 (T508,509,522,523,640,
641). The two had been separated for a couple of months (T508).
Mr. Jenkins found his wife across the street visiting with some
neighbors (T510,511,522,524). Mr. Jenkins' step-son and a couple
of neighbors noted that Mr. Jenkins was not wearing his short and
had something wrapped around his right wrist (T511,512,524,534,
547). One neighbor who had been talking with Kathy Jenkins (Mr.
Jenkins' wife) heard the conversation Mr. Jenkins had with his
wife: Mr. Jenkins told his wife he was in trouble. He needed same
money because he had lost his job. He shot a police officer. He
was breaking into a house that night. He needed his wife's h e l p .
When his wife asked what was under the shirt that was around his
right hand, Mr. Jenkins threw the shirt at Mrs. Jenkins; and the
neighbor could see a handcuff attached to the right hand and dang-
ling from the right hand (T524-526).
Mr. and Mrs. Jenkins and a friend wound up in the neighbor's
apartment in order to clean up Mr. Jenkins (T528,536). They were
taking a long time in her apartment, so the neighbor sent her
boyfriend, Sean Davis, into the apartment to find out what was
going on (T529,536). Mr. Davis, when he went into the apartment,
could see that they had been trying to get the handcuffs off Mr.
Jenkins' wrist. Mrs. Jenkins knew Mr. Davis was a welder, and she
asked if he would help. Mr. Davis said that before he would do
anything he wanted to know where Mr. Jenkins had shot someone --
lo
was it close? Mr. Jenkins said, ''yes" (T537,538). Mr. Davis
didn't ask any more questions and helped take the locked handcuffs
off. Mr. Davis noticed Mr. Jenkins' wrist was slightly bruised
(T538). Once the handcuffs were off, Mr. Jenkins gathered up his
stuff and they all left (T538,539). Mr. Jenkins went down an
alley, and Mrs. Jenkins became very upset. Mrs. Jenkins decided to
call the police (T539, 540).
After that, there was a lot of police activity in the area
(T516,540-542). At about 2:OO a.m. Mr. Jenkins returned to the
area where Mrs. Jenkins lived and tried to get someone to hide him
in one of the apartments until the police left (T516,542). Mr.
Jenkins was wearing different clothes (T518,542). At that point,
the police arrested Mr. Jenkins; Mr. Jenkins did not resist (T518,
530,543,552,553). After being given his Miranda warnings and sign-
ing a waiver, Mr. Jenkins was questioned at the station (T795-798).
The investigating officer noted the deep marks on Mr, Jenkins'
right wrist that appeared to be the width of a handcuff. Mr.
Jenkins claimed the arresting officer had put the cuffs on too
tight (T798). Mr. Jenkins denied being involved with the death of
Officer Tackett and denied being involved in an attempted burglary
at the Pelican Place Condominiums (T802). When Mrs. Jenkins was
brought into the room to confront Mr. Jenkins with their prior con-
versation, Mr. Jenkins denied having said these things to his wife
(T803). Mr. Jenkins admitted having just been fired from his job
that day, having only $18 in a savings account somewhere, and need-
ing $75 for his rent that would be due the next day (T800).
11
Two people who had worked with Mr. Jenkins during the day of
June 1 3 , 1993, also testified that Mr. Jenkins had told them he
needed money real bad to pay his rent the next day3 (T670-673,675-
677). They all spent the day doing yard work, and it was noted Mr.
Jenkins used white cotton work gloves with a blue band on the wrist
while he worked. They also noted Mr. Jenkins was fired that day
(T670-677).
Several experts testified as to various aspects of physical
evidence: The gunshot reside a n a l y s t found no residue on Mr.
Jenkins' hands. There could be several reasons for this: (1) The
better the gun, the less likely residue will be present; and this
gun was a well-made gun. ( 2 ) Wearing gloves will keep off residue.
(3) Residue will come off with wiping OF washing (T627-634). The
hair and fiber analyst examined fabric impressions left on the
knife found at the scene and found them to be consistent with hav-
ing been made by a light-duty work glove that is white with a blue
rim at the wrist. An examination of hairs and fibers taken from
Mr. Jenkins' clothing worn at the time of his arrest and the
clothes he was wearing when he had the handcuffs removed revealed
nothing t h a t compared to Officer Tackett and no caucasian hairs.
An examination of fibers and hairs removed from Officer Tackett
also revealed nothing that compared to Mx. Jenkins and no negroid
hairs. The expert talked about a theory of transfer that states
the longer two people are in close personal contact with each other
the more likely there will be a transfer of hair and fibers. In a
These witnesses both said he needed $700 (T673'677).
12
struggle there should be a transfer, but here there was none. The
expert did admit there would be a good likelihood of transfer if a
person who is standing close enough to handcuff a person is subse-
quently overpowered by that person (T678-694). The blood analyst
did not find any blood on Mr. Jenkins' clothes (T695-701). The
glass analyst found glass on Mr. Jenkins' clothes with the same
refractive index as the glass in the broken door where the
attempted point of entry was located. The expert admitted that the
refractive index only tells that the glass could have come from a
known sample -- i ' not a definite comparison.
ts The expert also
admitted that someone doing yard work could very well pick up
pieces of broken glass in the dirt. The expert did find dissimilar
glass on Mr, Jenkins' clothes (T702-717).
The firearms and toolmarks analyst rendered his opinion that
the bullet found in Officer Tackett had come from the officer's gun
(T733,734). In describing the officer's gun, he noted it was a
single action/double action pistol (T742). Typically this gun is
carried in the holster with the hammer forward so the first shot is
a double-action shot with subsequent shots being single action. It
takes more pressure to pull the trigger in a double-action mode (12
1/2 pounds in this gun) than in a single-action mode (7 1/2 pounds
in this gun) (T742-744). This gun was capable of firing nine
bullets without reloading -- one in the chamber and eight in the
magazine. In this case he had received only one fired bullet, one
fired case, and eight live cartridges (T739). This gun had three
safeties that would prevent it from going off in a cocked position
13
if dropped, and these safeties were working (T744-747). He had
m examined Officer Tackett's clothes, but found no gunshot residue
(T750-751). Typically, one would find particles embedded in the
target material within one to two feet from the muzzle to the
target; but he found no embedded materials in the officer's pants
(T752). The expert said there are four factors that might impact
on whether or not there would be any residue: (1) shots fired a
distance greater than the maximum distance at which residues would
be deposited (in this case, test firing of the gun revealed parti-
cles still hit the target at three feet, a few particles hit the
target at 4 1/2 feet, and no particles hit the target at five
feet); (2) there's an intervening object (like shooting through a
shirt); ( 3 ) the residue could have been there but fell off in the
handling by medical personnel, evidence technicians, etc.; and/or
( 4 ) the residue may have been deposited but could have been washed
away by heavy bleeding (T753-761). Because he did not find any
gunshot powder residue or vaporized lead an the officer's pants, he
could not make any determination as to muzzle-to-garment distance.
The expert refused to conclude that there was no residue because
the distance was over 4 1/2 feet; he simply could not determine
muzzle-to-garment distance and pointed to his four reasons (T772-
780).
The parties stipulated that the person shot and killed on this
particular night was Jeffrey Tackett, and Tackett was at all times
material to this case a law enforcement officer in the execution of
his duties (T556,557). After the State rested, the defense rested
14
without putting on any evidence (T872,877). It is to be noted that
in opening statement and closing argument, defense counsel admitted
that Mr. Jenkins was trying to break into Ms. Walker's condo and
had shot the officer during a struggle (T343-347,912,930,937,968,
976). Thus, identity was not an issue in this case.
B. Penaltv Phase Testlmonv
In addition to the evidence presented at trial, the State only
presented one additional witness at the penalty phase. Sergeant
Mark Teunis testified as to his investigation of Mr. Jenkins having
fired a gun into a building occupied by Kathy Carey (who eventually
became Kathy Jenkins, Mr. Jenkins' wife) and her three children.
The incident occurred on March 3 , 1988. Ma. Carey, who was near
the front door when three shots were fired -- one at the door and
two at the front window, said she had broken up with Mr. Jenkins in
December of 1987. Mr. Jenkins was cooperative and polite and calm
when he was arrested, and he denied doing the shooting. However,
Mr. Jenkins did plead guilty to the offense of shooting into an
occupied building on November 30, 1988 (T1057-1067).
The defense presented Mrs. Jenkins' testimony as to both the
1988 shooting and the 1993 shooting of Officer Tackett. Mrs.
Jenkins knew it was Mr. Jenkins who had fired the shots in March
1988; they were fired because of a jealous feud. After that, they
got back together, were married, and worked together as managers of
an apartment building. Mr. Jenkins helped support her family. She
did not believe her husband wanted to kill her in 1988; she would
15
never have married him if she thought that. Although they were
still married at the time of the trial, they had separated in the
summer of 1993. However, when her husband came to her on that
night with a handcuff on his wrist, she helped him. She also
called the police because she knew an officer was down somewhere.
She was also afraid the police would end up killing her husband.
Mrs. Jenkins testified that she knew her husband did not kill the
-
officer on purpose -- "he was freaked out when he came to me,
really freaked out" (T1071-1078).
The defense also presented testimony of Mr. Jenkins' sisters,
brother, and mother: Carrie Jenkins, Mr. Jenkins' younger sister,
grew up with her brother in Jacksonville. He came back to Jackeon-
ville in November 1992 for their sister's funeral, and he stayed
with her for a while working daily jabs and trying to get a perma-
nent job. She had corresponded and spoken with her brother a lot
since the shooting (T1079,1080). Benetha Jenkins, another of Mr.
Jenkins' sisters, also grew up with her brother in Jacksonville. He
was like an older brother; he kept everyone in line while their
mother was at work (T1081,1082). James Jenkins, Mr. Jenkins's
older brother, said they were close when they grew up. James
Jenkins noted he had been shot and ended up in a wheelchair 5 1/2
years ago while resisting a robbery. When their sister died,
Lorenzo came hame to be with the family. Lorenzo brightened every-
one up a little bit. Lorenzo helped him (James) out a lot and did
things to make his (James


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