United States v. Jackson

88 F.3d 845 (10th Cir. 1996)

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Nature of the Case

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Facts

The victim was talking on a payphone when a man came up behind him with a chrome-colored snub-nose revolver and demanded the keys to his car. The carjacker was wearing an open-face ski mask and a blue jacket. While the carjacker was holding the revolver to the victim's head, a nearby eyewitness yelled out, 'Kenny, don't do it!' After taking money from the victim, the carjacker sped away in his newly acquired automobile. Police quickly spotted the stolen car and gave chase. The carjacker jumped from the car and fled on foot. The three officers had gotten a good look at the carjacker's face and later were able to identify him as D. Police recovered a snub-nose revolver and a ski mask from the car. They recovered a blue jacket which had been discarded during the foot chase. Inside the jacket, the officers found a pager. One officer retained possession of the pager and had it with him while filling out a report on the carjacking. The pager went off and displayed a telephone number. The officer called the number and heard a female voice say, 'Is this Kenny?' This statement as well as the statement, 'Kenny, don't do it!' were admitted against D over his objection. D was convicted and appealed.