
DATE: Sunday, July 6, 1997                  TAG: 9707060075

SECTION: LOCAL                   PAGE: B1   EDITION: FINAL 

SOURCE: BY ANGELITA PLEMMER, STAFF WRITER 

DATELINE: PORTSMOUTH                        LENGTH:  124 lines

MAN'S SHOOTER MAY BE SET FREE

Kelly Jackson's prognosis seemed good in May 1995, as he recovered in the hospital from the five bullets a childhood friend had pumped into his body.

He was scheduled to be released in a few days and was biding his time in his hospital bed.

Then something went wrong. Jackson had what appeared to be a seizure, then vomited and choked to death.

Jackson, 23, had identified Antwan Jenkins as the shooter. When Jackson died, prosecutors upgraded charges against Jenkins from malicious wounding to first-degree murder. A jury convicted Jenkins of first-degree murder and sentenced him to 26 years in prison.

Now, more than a year after his conviction and imprisonment, Jenkins, 23, could go free. The Virginia Court of Appeals overturned his conviction. The court ruled last month that prosecutors never proved that the seizure which led to his death resulted from the gunshot wounds.

That ruling is now on appeal, and for now, Jenkins remains in prison at Southampton Correctional Center.

Jackson's family believes that the ruling was all a matter of legal semantics and that it could leave them without justice.

``I don't understand the justice system,'' said Lera Jackson, sitting in the living room of her Cavalier Manor home under an oil painting of her son. ``With (Jenkins) being convicted and being sentenced, we thought it was over.''

But Jenkins' attorney says prosecutors failed to prove their case.

``The commonwealth must prove every element beyond a reasonable doubt,'' said John Levin, a Portsmouth attorney who is handling Jenkins' appeal. ``That didn't happen here.''

According to the law, prosecutors had to prove that Jackson's death was a direct result of another individual's criminal act, Levin said.

``This is why the system was put here.''

Jenkins and Jackson grew up two streets apart and played together in the tree-lined yards of their Cavalier Manor neighborhood. They attended the same middle and high schools. Their sisters played together.

But on May 21, 1995, the childhood playmates turned into deadly adversaries during an argument over a woman. Jenkins shot Jackson in front of children playing nearby.

Doctors removed the bullets from Jackson's back, chest and stomach. The doctors thought that in about a week, he'd be strong enough to go home. But a few days after he was shot, on May 25, Jackson broke into a cold sweat.

He started vomiting and thrashing around in his bed while his eyes rolled back in his head. His mother yelled for a doctor as she tried to control his arms and legs.

Jackson died two days before he was to be released from the hospital. The attending physician testified that he appeared to have had a seizure. His mother said in a recent interview that Jackson had no history of seizures.

During the Feb. 15 murder trial last year in Circuit Court, Assistant Commonwealth's Attorney Michael J. Massie argued that Jackson died because Jenkins shot him five times. The jury apparently believed the argument and convicted Jenkins.

Massie declined to comment on the case because it is still under appeal.

At trial, a medical examiner testified that one of the bullets hit Jackson's large and small intestines, an injury that by itself was not fatal. But coupled with an infection, it could have been fatal, he testified.

Levin, Jenkins' current attorney, says medical witnesses for the prosecution never provided evidence of an infection, however. They also never provided jurors with any evidence of Jackson's medical history that might have indicated whether he was prone to seizures.

``The commonwealth didn't prove anything except the man died after a gunshot wound,'' Levin said. ``There was no testimony that the gunshot wounds caused the (choking) that Jackson suffered.'' The medical examiner had ruled only that Jackson died of aspiration, or choking on his vomit.

Before the choking episode, ``it would appear from the record he was doing quite well,'' Levin said.

Lawyers on both sides are waiting to hear whether the full Court of Appeals will hear the case.

On June 3, a three-judge panel of the state appeals court reversed the jury's 1996 verdict and dismissed the murder charge. On June 16, the state attorney general's office appealed that ruling and asked for a new hearing before the full court of 10 judges. The court has not yet ruled on whether it will grant that hearing, said Don Harrison, a spokesman for the attorney general's office.

If the 10 judges agree to hear the case, they could send it back to Circuit Court for a new trial. Or they could uphold the initial decision of the three appellate judges to reverse the jury's conviction.

If they refuse to grant another hearing, a law that went into effect July 1 could allow the attorney general's office to appeal for a hearing before the state Supreme Court, Harrison said.

However, Levin said, the new legislation may not be retroactive, and Jenkins could become a free man.

Because of constitutional protection against double jeopardy, Jenkins could not be retried for the crime on a lesser charge, such as malicious wounding.

Jenkins initially agreed to an interview from prison but later declined.

Jackson's relatives said they are afraid that there will be no justice for the father of two and ITT Tech electronics graduate.

``I don't feel you should be able to commit a crime and walk away just because three people voted it,'' Lera Jackson said. ``There are other victims.''

Jackson had been hoping to move to Maryland to start a new job. He had a bright future, his mother said. He was generous and always helped his younger brother and five sisters financially.

``I don't think that boy knows what our family is going through,'' said Shari Jackson, 27, who still grieves over the loss of her brother. ``We've got to live without our brother every single day. He's taken somebody's brother, daddy, son, uncle.''

``If it wasn't for him, I wouldn't have my job,'' said Shari Jackson, who packs hot dogs at a local meat plant. ``He was taking me to work every day and he made sure I was on time. He even paid my phone bill when I didn't have the money.''

``The justice system makes you angry,'' Lera Jackson added. ``If (Jenkins) had a gripe with Kelly, he could have talked to Kelly.

``He didn't have to kill him.'' ILLUSTRATION: Photos

Jackson: He was recovering well but then had a seizure and died.

Jenkins: A court says he wasn't proved to have caused the death.

RICHARD L. DUNSTON, The Virginian-Pilot

Kelly Jackson's mother, Lera Jackson, sitting at center, with her

other children, clockwise from left: Lavette, Dorenda, Charles Jr.,

Kimberly and Ralene. Daughter Shari is not pictured. Kelly Jackson's

relatives say they are afraid that there will be no justice for him.

He had a bright future, his mother said. And he was generous; he

always helped his younger brother and five sisters.