Devin Earl Banks was convicted of shooting
Kadhem Al-Maily to death and critically wounding Hussain Altilebawi
during a robbery in September 2002.
Devin Banks – black, age 18
Sentenced to death in Shelby County, Tennessee
By: A jury
Date of crime: 9/16/2002
Prosecution’s case/defense response: Banks
killed Kadhem Al-Maily and permanently disabled Hussain Altilebawi.
Banks and his co-defendant, Michael Hilliard, took cash, clothing,
stereo equipment, and two vehicles from the victims. After shooting
Altilebawi three times, Banks forced Al-Maily to lie face down on the
ground; Al-Maily was shot in the back of the head execution style.
Though Banks considered the two victims his friends, he told
authorities he shot them because he thought he had been defrauded and
the men were also having a quarrel over a woman.
Prosecutor(s): Karen Cook; Stacy McEndree
Defense lawyer(s): Unknown
Sources: Memphis Commercial Appeal 4/12/2005 (2005
WLNR 5749311); AP Alert – Tennessee 4/11/2005 (4/11/05 APALERTTN
The Tennessee Supreme Court has upheld the death
and prison sentences imposed on Devin Banks of Memphis for killing a
friend and severely wounding a second man who was left for dead in the
driveway of his home during a robbery.
Banks was convicted of premeditated murder, murder
during the perpetration of a robbery, attempted first degree murder
and especially aggravated robbery. He was sentenced to death for the
2002 killing of Kadhem Al-Maily and 50 years in prison for robbery and
the attempted murder of Hussain Atilebawi. Both victims were
immigrants from Iraq who lived and worked in Memphis.
In a unanimous opinion, the court rejected issues
raised by Banks in his direct appeal. By law, for a defendant to
receive a sentence of death, jurors must find one or more statutorily
defined aggravating circumstances. In the Banks case, they found two -
that the murder was committed for the purpose of avoiding arrest or
prosecution and that the victim was killed while Banks played a
substantial role in a first degree murder.
The court wrote that the murder victim was “widely
known and respected among the Iraqi community in Memphis because he
had a reputation of helping persons in need.” He and Atilebawi had
been acquainted in Iraq and became close friends in Memphis. “After
they moved to Memphis, both Mr. Al-Maily and Mr. Atilebawi befriended
Devin Banks. Banks was welcome in Mr. Atilebawi’s home and he
occasionally spent the night at Mr. Atilebawi’s house.”
The friendship between the Iraqi men and Banks
soured because of an incident involving a former girlfriend of Banks
and because Banks believed Atilebawi owed him money. Banks asked a
friend, Michael Hilliard, to obtain a handgun and assist him in
Three nights later, the men went to Atilebawi’s
house, armed with a .22 caliber semi-automatic pistol provided by
Hilliard. After being welcomed into Atilebawi’s home, Banks borrowed a
cordless phone and went outside to call Hilliard who was waiting
nearby. When Atilebawi also walked outside, Banks shot him four times,
including three times after he was lying in the driveway.
Banks re-entered the house and confronted Al-Maily,
who turned over $300 in cash. He ordered Al-Maily to lie face down on
a bedroom floor while he and Hilliard loaded items stolen from the
house into cars belonging to Atilebawi. They returned to the house,
where Banks shot Al-Maily in the head. The men then fled in the stolen
Atilebawi survived his wounds and was able to call
for help. He told officers on the scene what had happened. Banks was
arrested driving one of the stolen vehicles which contained stolen
cash and merchandise. After being advised of his Miranda rights, Banks
gave two confessions. In the second confession, he admitted shooting
the victims and provided details of the crime.
He was convicted in 2005 and during the penalty
phase was sentenced to death. During a required proportionality review,
Koch wrote that the Supreme Court concluded that the sentence of death
was not arbitrarily imposed; the evidence supported the jury’s finding
of statutory aggravating circumstances; the evidence supported the
jury’s finding that the aggravating circumstances outweighed
mitigating evidence; and the sentence was not excessive or
disproportionate to the penalty imposed in similar cases.
Police forced false confession, murder defendant
By Lawrence Buser - CommercialAppeal.com
October 23, 2008
A man charged with participating in a murder and
robbery of two Iraqi men in 2002 testified today that a detailed
confession attributed to him was coerced by police.
Michael Hilliard said a .22-cal. pistol he owned
was used in the murder of one man and the wounding of another, but
that he was not at the scene of the crime on Sept. 16, 2002, at 1191
“Police never touched me,” Hilliard told a Criminal
Court jury, “but they yelled at me, screamed at me and beat on the
In the five-page statement read to the jury
Wednesday, Hilliard, 28, is quoted as saying he followed instructions
of codefendant Devin Earl Banks who shot and killed Kadhem Al-Maily,
39, and critically wounded Hussain Altilebawi, 36.
Altilebawi ran a car repair shop at Macon and
National and was known to the two men.
According to the statement, Hilliard said he tried
to move the body of one man who was shot, helped take items from
Altilebawi’s house and drove off in one of the two cars stolen that
He is charged with criminal responsibility for
first-degree murder and especially aggravated robbery.
Jurors are expected to get the case Friday.
Banks, 25, was convicted in 2005 and is on
Tennessee’s death row.
Supreme Court of Tennessee
State v. Banks
STATE of Tennessee v. Devin BANKS.
November 07, 2008
WILLIAM C. KOCH, JR., J., delivered the opinion of
the court, in which JANICE M. HOLDER, C.J., WILLIAM M. BARKER,
CORNELIA A. CLARK, and GARY R. WADE, JJ., joined.
Robert Jones, Shelby County Public Defender; Phyllis
Aluko and Tony N. Brayton, Assistant Public Defenders (on appeal); Kathy
Kent and Latonya Burrow, Assistant Public Defenders (at trial); Memphis,
Tennessee, for the appellant, Devin Banks.Robert E. Cooper, Jr.,
Attorney General and Reporter; Michael E. Moore, Solicitor General; Mark
A. Fulks, Senior Counsel; Clarence Lutz, Assistant Attorney General (on
appeal); William L. Gibbons, District Attorney General; Stacy
McEndree and Karen Cook, Assistant District Attorneys General (at
trial); Memphis, Tennessee, for the appellee, State of Tennessee.
This appeal involves a defendant who shot two
persons during a robbery at the home of one of the victims. One of
the victims died. A Shelby County grand jury indicted the defendant
for (1) premeditated and intentional murder, (2) murder during the
perpetration of a robbery, (3) attempted first degree murder, and (4)
especially aggravated robbery. A jury found the defendant guilty on
all counts. At the penalty phase of the trial, the jury found the
presence of the aggravating circumstances in Tenn.Code Ann.
§ 39-13-204(i)(6) and (7) (2006) and sentenced the defendant to death.
In a separate sentencing hearing, the trial court sentenced the
defendant to twenty-five years for the attempted first degree murder
and especially aggravated robbery convictions and ordered these
sentences to be served consecutively to each other and to the sentence
of death. The defendant appealed his convictions and sentences to
the Court of Criminal Appeals. The Court of Criminal Appeals, after
concluding that the trial court's submission of the Tenn.Code Ann.
§ 39-13-204(i)(6) aggravating circumstance to the jury was harmless
error, affirmed the defendant's convictions and the sentences. State
v. Banks, No. W2005-02213-CCA-R3-DD, 2007 WL 1966039 (Tenn.Crim.App.
July 6, 2007).
We have concluded that the Court of Criminal
Appeals erred by holding that the evidence did not support submitting
the Tenn.Code Ann. § 39-13-204(i)(6) aggravating circumstance to the
jury. We also hold as follows: (1) the trial court committed no
errors with regard to the admission or exclusion of evidence, (2) the
trial court did not err with regard to its handling of the Arabic
language interpreter or the dismissal of one of the jurors, (3) the
prosecutor's closing arguments did not result in reversible error, (4)
the trial court did not commit reversible error with regard to the
instructions for lesser-included offenses, (5) the evidence supports
the defendant's convictions for attempted first degree murder and
especially aggravated robbery, (6) the sentences of attempted first
degree murder and especially aggravated robbery are not excessive, and
the trial court did not err by ordering them to be served
consecutively, (7) the evidence supports the defendant's first degree
murder convictions, as well as the jury's finding that the Tenn.Code
Ann. § 39-13-204(i)(6) and (7) aggravating circumstances apply in this
case, (8) the defendant's multiple constitutional challenges to
Tennessee's death penalty procedures are without merit, and (9) the
defendant's constitutional challenge to Tennessee's lethal injection
protocol is without merit. We also agree with the Court of Criminal
Appeals's conclusion with respect to the remaining issues and attach
to this opinion as an appendix the relevant portions of that court's
opinion. Finally, in the discharge of our obligation under Tenn.Code
Ann. § 39-13-306 (2006), we have thoroughly reviewed the record in
this case and have determined (1) that the defendant's death sentence
was not imposed in an arbitrary fashion, (2) that the evidence fully
supports the aggravating circumstances in Tenn.Code Ann.
§ 39-3-204(i)(6) and (7), (3) that these aggravating circumstances
outweigh the mitigating circumstances offered by the defendant, and
(4) that the defendant's death sentence, taking into consideration the
nature of the offenses and the defendant himself, is neither excessive
nor disproportionate to the penalties imposed in similar cases.
Accordingly, the judgment of the Court of Criminal Appeals, as
corrected by this opinion, is affirmed.
The Crime, Arrest, and Investigation
Kadhem Al-Maily and Hussain Atilebawi immigrated to
the United States from Iraq and eventually settled in Memphis,
Tennessee. They were acquainted with each other in their home
country, and they became close friends in Memphis because neither of
their families had accompanied them to the United States. Mr. Al-Maily,
who was called “Uncle” by those who knew him, was widely known and
respected among the Iraqi community in Memphis because he had a
reputation of helping persons in need and of making everybody happy.1
When Mr. Atilebawi first moved to Memphis, he worked in a grocery
store. Later, he operated a body shop and also ran several other
businesses out of his home, including selling used automobiles and
After they moved to Memphis, both Mr. Al-Maily and
Mr. Atilebawi befriended Devin Banks, who lived near Mr. Atilebawi.
Mr. Banks, whose nickname was “Boo,” was much younger than Mr. Al-Maily
and Mr. Atilebawi. Mr. Atilebawi was very generous to Mr. Banks.
He would hire Mr. Banks to perform “odd jobs,” such as constructing a
fence around his house. Mr. Atilebawi also sold several used cars to
Mr. Banks on very favorable terms. Mr. Banks was welcome in Mr.
Atilebawi's home, and he occasionally spent the night at Mr.
By September 2002, the relationship between Mr.
Banks and Mr. Atilebawi had changed, at least from Mr. Banks's point
of view. Mr. Banks was apparently upset about an incident that had
occurred one year earlier involving a former girlfriend,2
and he also believed that Mr. Atilebawi had cheated him out of a large
sum of money.3
On Thursday, September 12, 2002, he told his friend, Michael Hilliard,
that he “wanted to pay [Mr. Atilebawi] back.” Mr. Banks asked Mr.
Hilliard to obtain a handgun for him and to assist him in killing Mr.
Atilebawi. The two men discussed dumping Mr. Atilebawi's body in the
Wolf River to avoid detection.
Around 11:00 p.m. on Sunday, September 15, 2002, Mr.
Banks drove his white Ford Explorer to Sherry Tomason's house to drop
off her son. Ms. Tomason lived near Mr. Banks's brother's house
where Mr. Banks was staying. The Explorer had a flat tire, and Ms.
Tomason gave Mr. Banks permission to leave the vehicle in her yard.
She also offered to give Mr. Banks a ride, but Mr. Banks told her that
he was going to see the man who had sold him the vehicle and that this
man lived nearby. Ms. Tomason noted that it seemed to be late in the
evening to do that, but Mr. Banks was insistent.
After leaving Ms. Tomason's house, Mr. Banks met up
with Mr. Hilliard, and the two men proceeded to Mr. Atilebawi's house.
Mr. Banks was armed with a .22 caliber semi-automatic pistol
provided by Mr. Hilliard. They decided that Mr. Banks would arrive
at Mr. Atilebawi's house alone and that Mr. Hilliard would wait for a
telephone call from Mr. Banks summoning him to Mr. Atilebawi's house.
That same evening, Mr. Al-Maily was visiting Mr.
Atilebawi. The two men were engaged in conversation and watching
television when Mr. Banks arrived at Mr. Atilebawi's front door
between midnight and 2:00 a.m. on the morning of September 16, 2002.
Mr. Atilebawi welcomed Mr. Banks into his home, and Mr. Banks was
surprised when he saw Mr. Al-Maily sitting in Mr. Atilebawi's living
room. Mr. Banks and Mr. Atilebawi talked awhile, and their “general
conversation” touched on Mr. Banks's belief that Mr. Atilebawi owed
him money and on Mr. Banks's relationship with Ms. Thompson. At some
point during the conversation, Mr. Banks asked permission to use Mr.
Atilebawi's cordless telephone and stepped outside to call Mr.
Mr. Atilebawi thought that Mr. Banks was acting
suspiciously. He joined Mr. Banks outside because he wanted to check
on the used vehicles that were parked in the front of his house. Mr.
Atilebawi walked down his driveway to inspect the vehicles, and, as he
turned around to walk back to the house, Mr. Banks shot him with the
.22 caliber pistol. After Mr. Atilebawi fell to the driveway, Mr.
Banks shot him three more times. Two bullets struck Mr. Atilebawi in
the head, one in the shoulder, and one in the leg. Mr. Atilebawi was
bleeding profusely, and it became difficult for Mr. Atilebawi to see
because his eyes were covered with blood.
Mr. Banks tried to drag Mr. Atilebawi's body from
the driveway but was unable to move Mr. Atilebawi because he was too
heavy. Mr. Banks later confessed, “I was scared and didn't want
nobody to see him,” and “I tried to pull him away but he was too heavy
for me to move.” He left Mr. Atilebawi in the driveway and returned
to the house. Despite the blood covering his face, Mr. Atilebawi saw
Mr. Banks enter his house. He was also able to faintly see another
person with Mr. Banks. This person was Mr. Hilliard who, by that
time, had joined Mr. Banks.
When Mr. Banks re-entered Mr. Atilebawi's house, he
confronted Mr. Al-Maily. Mr. Al-Maily turned over three hundred
dollars in cash to Mr. Banks. Mr. Banks then ordered Mr. Al-Maily
into Mr. Atilebawi's bedroom and commanded him to lie face down on the
floor. Mr. Al-Maily complied. Messrs. Banks and Hilliard then
began rummaging through Mr. Atilebawi's bedroom and living room
looking for items to steal. Eventually, they decided to steal a red
Jeep Cherokee and a Chevrolet Caprice from among the cars in the front
yard. They loaded audio speakers and many shirts and hats in their
original packaging into the Jeep. Mr. Banks also pocketed several
thousand dollars in cash. The cash-mostly one hundred dollar bills
and possibly in excess of six thousand dollars-was the proceeds from
the sale of one of Mr. Atilebawi's used cars.
After all the stolen property had been loaded into
the Jeep, Mr. Banks re-entered Mr. Atilebawi's house, and walked
through the living room and the short hallway to the bedroom where Mr.
Al-Maily was still lying face-down on the floor. Mr. Al-Maily had
cooperated fully with Mr. Atilebawi during the robbery. He had not
interfered or resisted in any way, and he had quickly surrendered all
the cash he had with him to Mr. Banks.
Nonetheless, Mr. Banks drew his .22 caliber pistol,
placed it not more than twenty-four inches from Mr. Al-Maily's head,
and shot him behind the right ear. The bullet ricocheted into the
left portion of Mr. Al-Maily's brain. The force of the gunshot
caused Mr. Al-Maily to vomit reflexively, and Mr. Banks watched the
blood and vomit flow from Mr. Al-Maily's mouth. Mr. Banks walked out
of the house and returned the pistol to Mr. Hilliard. Messrs. Banks
and Hilliard then left the scene, Mr. Banks driving the red Jeep and
Mr. Hilliard driving the Chevrolet Caprice. They later abandoned the
Caprice at an apartment complex, and Mr. Banks drove Mr. Hilliard home
in the red Jeep.
Mr. Atilebawi continued to lie bleeding in the
driveway where he had fallen after Messrs. Banks and Hilliard
entered his house. He did not dare move because he was afraid that
he would attract Mr. Banks's attention and that Mr. Banks would shoot
him again. Mr. Banks later stated that he thought Mr. Atilebawi was
still alive when he left because he heard Mr. Atilebawi call his
After dropping off Mr. Hilliard, Mr. Banks picked
up his brother in the stolen red Jeep and went on an early morning
shopping spree with the money he had taken from Mr. Atilebawi. He
purchased men's clothing at a nearby K-Mart store, a camera and some
hair products at a nearby Walgreens drug store, and some brake pads
and an air freshener for the white Ford Explorer at an Auto Zone
store. Along the way, Mr. Banks and his brother stopped for
breakfast at a Waffle House, and Mr. Banks even picked up an
employment application at Walgreens. Mr. Banks brought his brother
home at approximately 6:30 a.m.
At approximately 7:00 a.m., Mr. Banks drove the red
Jeep to Ms. Tomason's house. Before driving Ms. Tomason's son to
school, he talked with Ms. Tomason awhile and retrieved a compact disc
from his Ford Explorer that was still parked in her front yard.
After dropping off Ms. Tomason's son at school, Mr. Banks drove to
Maco Tires and Auto Care where he purchased custom rims and new tires
for the Jeep for approximately $1,500. Mr. Banks paid cash, and the
manager remembered that he “pulled out quite a bit of money and ․
started peeling off one hundred dollar bills.”
When the manager put the old rims and tires in the
back of the Jeep, he noticed a significant amount of matching shirts
and hats in their original packaging. When he asked Mr. Banks about
the clothing, Mr. Banks told the manager that he sold clothing and
that he had just returned from St. Louis. Mr. Banks sold the manager
two sets of matching shirts and hats for ten dollars each.
In the meantime, despite multiple gunshot wounds
and significant blood loss, Mr. Atilebawi managed to drag himself to
the telephone in his house. He was apparently able to press the
redial button on the telephone and connect with a friend in Detroit,
Michigan. What Mr. Atilebawi told his friend in Detroit is unclear.
However, that call prompted Mr. Atilebawi's friend to call some of
Mr. Atilebawi's friends in Tennessee, including Mohammed Al-Burkart
and Aadel Alkhafaji. Mr. Al-Burkart and his wife drove to Mr.
Atilebawi's house and telephoned the police as soon as they saw what
had taken place.
Officer Steven Jones was the first officer to
arrive at Mr. Atilebawi's house at approximately 7:00 a.m. He found Mr.
Atilebawi lying in a pool of blood on a sofa in the living room and
observed that there was blood all over the living room. Even though
Mr. Atilebawi was disoriented and dazed, he told Officer Jones what
had happened and identified “Boo” as the person who had shot him. He
described “Boo” as an African-American male in his late teens or early
twenties. Mr. Atilebawi also told Officer Jones that “Uncle” was in
the other room. Officer Jones then discovered Mr. Al-Maily dead in
the bedroom. Officer Jones summoned medical assistance, crime scene
investigators, and homicide detectives to the scene. The emergency
medical responders arrived at Mr. Atilebawi's house a short time later.
The officers at the scene began to interview
neighbors to learn who “Boo” was. They learned quickly that “Boo”
was Mr. Banks's nickname and that they should be on the lookout for a
red Jeep. Sergeant Mark Miller was in the neighborhood following up on
these leads when he saw a Jeep matching the description of the Jeep
stolen from Mr. Atilebawi traveling in his direction.4
When the Jeep made an abrupt turn and headed down another street,
Sergeant Miller gave chase and stopped the Jeep. When Sergeant Miller
ascertained that Mr. Banks was driving the Jeep, he placed Mr. Banks
under arrest at approximately 9:30 a.m. During his search of Mr. Banks
and the Jeep, Sergeant Miller found $1,253 in cash (including ten one
hundred dollar bills), the stolen clothing and audio speakers, and the
receipts for the purchases Mr. Banks had made during the shopping
spree with his brother.
Mr. Banks did not appear to be injured when he was
arrested. He acted in a lackadaisical manner and said nothing at the
scene of the arrest. Mr. Banks was transported to the Homicide
Office of the Memphis Police Department, and the Jeep was impounded.
At 1:42 p.m., Sergeant Miller and Lieutenant Michael Williams advised
Mr. Banks of his Miranda rights, and Mr. Banks signed a written waiver
of his rights and gave the first of two confessions.
In his first confession, Mr. Banks admitted that he
was present at Mr. Atilebawi's house when Mr. Atilebawi was shot, but
he claimed that a man named Brian Winters had shot Mr. Atilebawi. Mr.
Banks confessed that he had stolen the red Jeep, the clothing, and the
audio speakers. He also confessed that he had tried to hide Mr.
Atilebawi's body. In addition, he stated that he and Mr. Atilebawi
had discussed his belief that Mr. Atilebawi owed him money and his
belief that Mr. Atilebawi had molested Ms. Thompson in September 2001.
Following Mr. Banks's first confession, the
authorities arrested Mr. Winters at his house and also recovered a .25
caliber pistol and a .22 caliber pistol that later proved to be the
pistol that shot both Messrs. Atilebawi and Al-Maily. Coincidently,
Mr. Hilliard was at Mr. Winters's residence when Mr. Winters was
arrested, but he was not a person of interest to the authorities at
that time. Once in custody, Mr. Winters denied that he had been
involved with the shootings or the robbery at Mr. Atilebawi's house
and provided the authorities with the names and telephone numbers of
several alibi witnesses.
On September 17, 2002, while in the process of
confirming Mr. Winters's alibi, Sergeant Miller talked with both Mr.
Winters's girlfriend and Mr. Hilliard on the telephone. He asked Mr.
Hilliard to come down to the police station to give a statement
regarding Mr. Winters's whereabouts when the crimes were committed.
When Mr. Hilliard stated that he had no means of transportation,
Sergeant Miller offered to send a car for him. When Mr. Hilliard
arrived at the police station, he gave Sergeant Miller what he
believed to be an owner's manual for a Jennings .22 caliber semi-automatic
The same day, after Mr. Banks told the authorities
that he wanted to recant portions of the confession he had given to
Sergeant Miller and Lieutenant Williams on September 16, 2002,
Sergeant James L. Fitzpatrick obtained a second confession from Mr.
Banks. Mr. Banks was brought back to the Homicide Office, and
Sergeant Fitzpatrick again informed Mr. Banks of his Miranda rights
and obtained a signed written waiver of these rights on September 17,
2002, at 4:05 p.m. Mr. Banks then gave a second confession which was
reduced to writing. Mr. Banks was given an opportunity to review and
to correct his written confession. He made no changes and then
initialed each page and signed the confession at 5:06 p.m.
In his second confession, Mr. Banks admitted that
he had shot Mr. Al-Maily and Mr. Atilebawi with a black .22 or .25
caliber automatic pistol that belonged to Mr. Hilliard. He stated
that he obtained the pistol from Mr. Hilliard on Sunday night before
he went to Mr. Atilebawi's house. He told Sergeant Fitzpatrick that
he shot Mr. Atilebawi in revenge for Mr. Atilebawi's cheating him out
of a large sum of money and because of the September 2001 incident
involving Ms. Thompson. Mr. Banks admitted that he had explained to
Mr. Hilliard three days before the shooting why he wanted the pistol
and that at that time they had discussed disposing of Mr. Atilebawi's
body in the Wolf River.
Mr. Banks provided the details of the crime during
his second confession. He admitted arriving at Mr. Atilebawi's house
alone early on the morning of September 16, 2002. He stated that he
engaged Mr. Atilebawi in conversation and then called Mr. Hilliard to
come to Mr. Atilebawi's house. He admitted that he shot Mr.
Atilebawi. He admitted robbing Mr. Al-Maily and Mr. Atilebawi and
taking more than three thousand dollars in cash, two automobiles,
men's clothing, and audio speakers. Finally, he admitted returning
to the house and executing Mr. Al-Maily after he and Mr. Hilliard had
filled the Jeep with stolen property.
The fact that Mr. Banks remained in the area after
shooting Messrs. Al-Maily and Atilebawi prompted Sergeant
Fitzpatrick to ask Mr. Banks about his shopping spree immediately
after he committed the crimes. When Sergeant Fitzpatrick asked him
why he had purchased new rims and tires for the Jeep, Mr. Banks stated
simply, “I figured that I would keep the Jeep.” He offered no
explanation for picking up the job application at Walgreens.
The two head wounds that Mr. Atilebawi received at
the hands of Mr. Banks were devastating and serious. Bullet and bone
fragments were surgically removed from Mr. Atilebawi's brain, and
surgeons were required to remove a portion of Mr. Atilebawi's temporal
lobe that controls speech, memory, and personality. As a result of
his injuries, Mr. Atilebawi was rendered susceptible to seizures and
was left with cognitive problems, which manifest themselves in the
form of speech difficulties and memory problems. Mr. Atilebawi was
hospitalized for approximately one month. When he returned home, he
discovered that property with an estimated value of forty thousand
dollars had been stolen, including his furniture, a stereo, and a big
The Indictment and Trial
In March 2003, a grand jury in Shelby County
returned a four-count indictment against Mr. Banks. The indictment
charged Mr. Banks with (1) the premeditated and intentional killing of
Mr. Al-Maily; 5
(2) the killing of Mr. Al-Maily in the perpetration of robbery; 6
(3) the attempted first degree murder of Mr. Atilebawi; 7
and (4) the especially aggravated armed robbery of property over the
value of ten thousand dollars from Mr. Atilebawi.8
One month later, on April 7, 2003, Mr. Banks filed
a motion to require the State of Tennessee to announce whether it
intended to seek the death penalty or another enhanced punishment.
On April 10, 2003, the State announced its intention to seek the death
penalty. In accordance with Tenn. R.Crim. P. 12.3, the State also
notified Mr. Banks that it intended to rely upon the following two
aggravating circumstances: first, that the murder was committed for
the purpose of avoiding, interfering with, or preventing a lawful
arrest or prosecution,9
and second, that the murder was committed while Mr. Banks was engaging
in committing a first degree murder or robbery.10
Mr. Banks's trial began on April 4, 2005. After
three days of voir dire, the State presented numerous witnesses over
the course of three days of testimony. These witnesses included Mr.
Atilebawi, the neurologist who treated Mr. Atilebawi, neighbors and
friends who knew the parties, the police officers and forensic
witnesses who had been involved in the investigation, the pathologist
who performed Mr. Al-Maily's autopsy, and the store manager from whom
Mr. Banks had purchased the rims and tires for the Jeep. After Mr.
Banks indicated that he did not desire to testify, the defense rested
without presenting any evidence. The jury began its deliberations on
Friday, April 8, 2005, and on Saturday, April 9, 2005, returned a
verdict finding Mr. Banks guilty on all four counts of the indictment.
The penalty phase of the trial began on Saturday,
April 9, 2005, after the guilt phase of the trial concluded. The
State called Mr. Atilebawi and his partner, Mary Hughes, to testify
regarding the impact of Mr. Banks's crimes on the victims. Mr. Banks
did not testify during the punishment phase; however, he called
eleven mitigation witnesses. These witnesses presented a positive
and sympathetic image of Mr. Banks. The implicit, and at times
explicit, undercurrent of their testimony was the youth of Mr. Banks
who was only nineteen years old when he murdered Mr. Al-Maily.
Five employees of the Office of the Shelby County
Sheriff testified about his conduct in prison and his efforts to
rehabilitate himself. They described Mr. Banks as a model prisoner
who had two minor blemishes on his disciplinary record and reported
that he had participated in programs involving religious studies,
anger management, drug and alcohol abuse, and other skills programs.
Three members of the Leewood Baptist Church also testified about Mr.
Banks's commitment to his church and his church-related activities.
Several of these witnesses expressed disbelief that Mr. Banks could
have committed the crimes for which he had been convicted and pleaded
with the jury to spare his life.
Three members of Mr. Banks's immediate family, his
mother, an older sister, and his oldest brother, also testified during
the sentencing phase of the trial. They described Mr. Banks's home
life when he was growing up, including the challenges of being one of
ten children of a mother who was in and out of prison because of
various forgery convictions and whose fathers were generally absent.
They also portrayed Mr. Banks as a gentle child who enjoyed cooking,
playing with cars, writing poetry, and drawing pictures. In addition,
they described the difficulties that Mr. Banks experienced when, at
the age of sixteen, he learned that he was HIV positive. These
family members testified that they loved and missed Mr. Banks and that
they intended to continue to correspond with and visit Mr. Banks while
he was incarcerated.
Through cross-examination of Mr. Banks's witnesses,
the State established that Mr. Banks had been assigned to a prison
unit where the prisoners were afforded special privileges and that,
while Mr. Banks's disciplinary history compared favorably to the
general inmate population, the number of his disciplinary offenses was
high when compared with the offenses of other prisoners on the unit.
The State also established that Mr. Banks had been supported during
his youth by a loving grandmother, older siblings, and members of his
church and that his older siblings did not mistreat him.
The State presented to the jury that Mr. Banks's
criminal record included assault, battery, and domestic violence. In
addition, the State called Ms. Thompson, Mr. Banks's former girlfriend,
as a rebuttal witness. Ms. Thompson painted a starkly different
picture from the one painted by his family and church friends. She
testified that Mr. Banks never told her that he was HIV-positive and
that she learned about his medical condition from another one of his
former girlfriends. She also testified that Mr. Banks regularly
abused her physically and verbally, and she described an incident when
Mr. Banks pointed a gun to her stomach when she was eight months
The jury returned its verdict on Monday, April 11,
2005. It concluded that the State had proved the existence of both
aggravating circumstances beyond a reasonable doubt.11
The jury also found unanimously and beyond reasonable doubt that the
aggravating circumstances outweighed the mitigating circumstances.
Accordingly, the jury unanimously sentenced Mr. Banks to death.
At a later sentencing hearing, the trial court
merged the first two counts of the indictment-the two capital
convictions-and sentenced Mr. Banks to death. It imposed a twenty-five
year sentence for the attempt to commit first degree murder conviction
and a twenty-five year sentence for the especially aggravated robbery
conviction and determined that Mr. Banks should serve these sentences
consecutively to each other and to the merged capital conviction.
Mr. Banks appealed to the Court of Criminal Appeals,
raising numerous challenges to his convictions and sentences. On
July 6, 2007, the Court of Criminal Appeals affirmed Mr. Banks's
convictions for first degree murder and the resulting sentence of
death. State v. Banks, No. W2005-02213-CCA-R3-DD, 2007 WL 1966039, at
*59 (Tenn.Ct.App. July 6, 2007). The court also affirmed Mr. Banks's
convictions for especially aggravated robbery and criminal attempt to
commit premeditated murder, as well as their resulting sentences. State
v. Banks, 2007 WL 1966039, at *59. The affirmance of Mr. Banks's
capital convictions and death sentence triggered an automatic review
by this Court in accordance with Tenn.Code Ann. § 39-13-206(a)(1)
(2006). Mr. Banks raises numerous arguments related to his
convictions and sentences which we will address in turn.
The Failure to Include Aggravating Circumstances
in the Indictment
After careful study of the parties' briefs with
regard to the issue of the failure to include the aggravating
circumstances in the indictment, we are persuaded that the decision of
the Court of Criminal Appeals on this issue should be affirmed.
Moreover, because we find that the opinion of the Court of Criminal
Appeals, State v. Banks, 2007 WL 1966039, at *38 adequately states the
facts and the law on this issue, we adopt this portion of the opinion
as the opinion of this Court and include it as an appendix to this
The Admission of the Photograph of Mr. Atilebawi
After careful study of the parties' briefs with
regard to the issue of the admission of the photograph of Mr.
Atilebawi, we are persuaded that the decision of the Court of Criminal
Appeals on this issue should be affirmed. Moreover, because we find
that the opinion of the Court of Criminal Appeals, State v. Banks,
2007 WL 1966039, at *14-16 adequately states the facts and the law on
this issue, we adopt this portion of the opinion as the opinion of
this Court and include it as an appendix to this opinion.
The Admission of Mr. Banks's Statements to the
Police Before Ruling on His Motion to Suppress
After careful study of the parties' briefs with
regard to the issue of Mr. Banks's suppression motion, we are
persuaded that the decision of the Court of Criminal Appeals on this
issue should be affirmed. Moreover, because we find that the opinion
of the Court of Criminal Appeals, State v. Banks, 2007 WL 1966039, at
*16-19, adequately states the facts and the law on this issue, we
adopt this portion of the opinion as the opinion of this Court and
include it as an appendix to this opinion.
The Admission of Mr. Atilebawi's Statement to
Officer Jones As An Excited Utterance
Mr. Banks asserts that the trial court erred by
admitting into evidence statements made by Mr. Atilebawi to Officer
Jones. Mr. Banks specifically takes issue with the following
PROSECUTOR: Officer Jones, when you asked Mr.
Atilebawi what happened, what did he tell you?
OFFICER JONES: He told me that a person that he
knew as Boo asked to use his phone. As he was talking on the phone
he was acting very suspicious. And at that time he walked out. He
felt a very sharp pain to his head and to his shoulder and heard a
couple pops and he ran back inside the house.
PROSECUTOR: ․ Who ran back inside the house?
OFFICER JONES: The ․ suspect did․ They were
outside talking because he walked back outside with the phone. And
as they ran back inside the house, he felt another-he heard another
pop and he felt a sharp pain to his shoulder.
Mr. Banks objected at trial that this testimony
constituted inadmissible hearsay. The trial court, however,
concluded that the testimony was admissible as an excited utterance
and also stated it could possibly be admitted as a dying declaration.12
The Court of Criminal Appeals concluded that the trial court did not
err by admitting the statement as an excited utterance. Mr. Banks
appeals from the Court of Criminal Appeals's conclusion. He contends
that the statement does not fall within the excited utterance
exception because (1) the statement was made in response to a question,
(2) the statement was given several hours after Mr. Atilebawi was shot,
and (3) Mr. Atilebawi was not still under the stress of a startling
event. We affirm the Court of Criminal Appeals's determination that
the trial court did not err in admitting the statement as an excited
Decisions regarding the admission or exclusion of
evidence are entrusted to the trial court's discretion. Thus,
reviewing courts will not disturb these decisions on appeal unless the
trial court has abused its discretion. State v. Robinson, 146 S.W.3d
469, 490 (Tenn.2004); State v. James, 81 S.W.3d 751, 760 (Tenn.2002).
Reviewing courts will find an abuse of discretion only when the
trial court applied incorrect legal standards, reached an illogical
conclusion, based its decision on a clearly erroneous assessment of
the evidence, or employed reasoning that causes an injustice to the
complaining party. Konvalinka v. Chattanooga-Hamilton County Hosp.
Auth., 249 S.W.3d 346, 358 (Tenn.2008).
Hearsay is “a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted.” Tenn. R. Evid.
801(c). Hearsay evidence is inadmissible unless permitted by the
rules of evidence or otherwise by law. Tenn. R. Evid. 802.
Tennessee law recognizes numerous exceptions to the bar on the
admission of hearsay evidence. See generally Tenn. R. Evid. 803; Tenn.
R. Evid. 804. Despite the significant number of exceptions, “it
would be a mistake to underestimate the force of the basic rule, which
especially but by no means only in criminal trials, plainly excludes a
substantial amount of otherwise relevant evidence.” 13
Well-rooted among the myriad of exceptions to the
general rule barring hearsay evidence are excited utterances.
Excited utterances are statements “relating to a startling event or
condition made while the declarant was under the stress of excitement
caused by the event or condition.” Tenn. R. Evid. 803(2). To
qualify as an excited utterance, three criteria must be met: (1)
there must be a startling event or condition that causes the stress or
excitement; (2) the statement must relate to the startling event or
condition; and (3) the statement must be made while the declarant was
under the stress or excitement caused by the startling event or
condition. State v. Gordon, 952 S.W.2d 817, 820 (Tenn.1997); State
v. Samuel, 243 S.W.3d 592, 600 (Tenn.Crim.App.2007); see also
Tennessee Law of Evidence § 8.07[b] to [d], at 8-75 to 8-78.
Mr. Banks contends that Mr. Atilebawi's statements
to Officer Jones cannot qualify as excited utterances because they
were made in response to Officer Jones inquiring into what had
happened. We find little merit in this argument because “statements
made in response to questions may still be admissible if the declarant
is under the excitement or stress of the event.” State v. Gordon,
952 S.W.2d at 820-21; see also State v. Smith, 857 S.W.2d 1, 9 (Tenn.1993).
Simply stated, “[t]he fact that a question prompted the excited
answer is a circumstance relevant to stress, but it does not
automatically bar the statement's admission” as an excited utterance.
Tennessee Law of Evidence § 8.07[d], at 8-78.
Mr. Banks also argues that the statements cannot
qualify as excited utterances because they were made by Mr. Atilebawi
to Officer Jones approximately four to six hours after the startling
We find little merit in this argument because the “length of time
between a startling event and the statement does not automatically
preclude the statement's being admissible as an excited utterance.” Williams
v. State, No. W2006-00605-CCA-R3-PC, 2007 WL 2120174, at *7 (Tenn.Crim.App.
July 24, 2007). In fact, “[t]he time interval is material only as a
circumstance bearing on the issue of continuing stress.” Tennessee
Law of Evidence § 8.07 [d], at 8-77.
Finally, Mr. Banks argues that Mr. Atilebawi did
not make his statement to Officer Jones while still under the stress
of a startling event. As previously noted, if a statement is not
made while the declarant is under the stress of a startling event,
then it cannot qualify as an excited utterance. State v. Gordon, 952
S.W.2d at 820; State v. Samuel, 243 S.W.3d at 600; see also
Tennessee Law of Evidence § 8.07[d], at 8-77 to 8-78. While the
statements are not per se inadmissible because they were made several
hours after the startling event in response to Officer Jones's
questions, the facts that they were responses to questions and that
they were made several hours after the shooting are relevant matters
for the trial court to consider in assessing whether Mr. Atilebawi
remained under the stress or excitement caused by his being shot four
times by Mr. Banks. While not an exclusive list, other relevant
factors “include the nature and seriousness of the event or condition;
the appearance, behavior, outlook, and circumstances of the declarant,
including such characteristics as age and physical or mental condition;
and the contents of the statement itself.” State v. Gordon, 952 S.W.2d
at 820; State v. Smith, 868 S.W.2d 561, 574 (Tenn.1993); Tennessee
Law of Evidence § 8.07[d], at 8-77.
The trial court offered a detailed and persuasive
analysis for its admission of Mr. Atilebawi's statements to Officer
Jones as an excited utterance:
I don't know how much more of a situation you could
describe than to have been shot four or five times and have your Uncle
in the other room shot, blood pouring out of your head and being asked
who did this.
I think it's still in the purview of all of the
events that were transpiring, the spontaneity of it may certainly
still be there. This is the first officer on the scene. He's going
up to the guy saying what happened, who did this. This certainly [is
an] excited utterance․ [I]f a person in good health has had 30 minutes
to sit and ponder it, it may not be an excited utterance. But if an
individual who has undergone this sort of traumatic event is asked by
the first officer on the scene what happened, I think that the
spontaneity and trustworthiness and reliability [are] there․
Although we conclude that the dying declaration
exception to the hearsay rule is not applicable, the trial court's
analysis of the applicability of that exception bolsters its finding
that this statement constituted an excited utterance. The trial
court stated the following:
[T]his guy had just been shot three times in the
head. His Uncle had been shot execution style in the other room and
he had blood gushing out of his head and he was undergoing all of this․
I think the injuries were so severe ․ to the brain, to the head, ․ and
to the skull that it's entirely plausible ․ that this person was
giving this information to a law enforcement officer, contemplating [the]
likelihood that he may not pull through.
Officer Jones also offered the following testimony
regarding Mr. Atilebawi's condition:
When we actually got there, he was still on the
couch and kind of in a dazed, confused state. And we saw all the
blood and immediately we went ahead and started the paramedics to get
over to treat him․ He was just in shock and ․ just very, very
disoriented and trying to tell us that his Uncle was still in the
The determination of whether to admit the
statements made by Mr. Atilebawi to Officer Jones is a discretionary
one. Our review is limited to determining whether the trial court
abused its discretion regarding that particular inquiry. The nature
of the event (being shot and left for dead while having a close
associate shot and killed in one's home), the condition of the Mr.
Atilebawi (in shock and requiring urgent medical attention), and the
nature of the statement (answering an officer's inquiry about what had
happened) all strongly support the conclusion that Mr. Atilebawi was
still under the stress caused by the startling event. Under the
facts and circumstances of this case, we cannot conclude that the
trial court abused its discretion in admitting Mr. Atilebawi's
statements to Officer Jones under the excited utterance exception to
the hearsay rule.
The Confrontation Clause and the Admission of Mr.
Atilebawi's Statements to Officer Jones
Mr. Banks insists that the trial court violated his
constitutional rights under the Confrontation Clauses of the state and
federal constitutions 15
by admitting into evidence Mr. Atilebawi's statements to Officer Jones.
Mr. Banks argues that the statements were testimonial and that Mr.
Atilebawi was available to testify, thus the admission thereof
violated his constitutional right of confrontation as construed in
Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177
(2004). The State responds that Mr. Banks's rights to confrontation
were not violated because the statements were non-testimonial and
because Mr. Atilebawi, the declarant, testified at trial. The Court
of Criminal Appeals found that there was no violation of Mr. Banks's
right to confront the witnesses against him. We affirm the
determination of the Court of Criminal Appeals.
The United States Supreme Court, interpreting the
Sixth Amendment in Crawford v. Washington, noted that “when the
declarant appears for cross-examination at trial, the Confrontation
Clause places no constraints at all on the use of his prior
testimonial statements.” Crawford v. Washington, 541 U.S. at 59 n. 9,
124 S.Ct. 1354. The Court added that the Confrontation Clause “does
not bar admission of a statement so long as the declarant is present
at trial to defend or explain it.” Crawford v. Washington, 541 U.S.
at 59 n. 9, 124 S.Ct. 1354. Article I, section 9 of the Tennessee
Constitution does not require a different conclusion. Mr. Atilebawi
was available and in fact was cross-examined by Mr. Banks “face to
face.” Mr. Banks was not deprived of his right to confront Mr.
Atilebawi, and his contention otherwise is wholly without merit.
The Arabic Language Interpreter
Mr. Banks insists that the trial court's use of a
non-credentialed Arabic language interpreter violated his federal and
state due process rights and his right to confront the witnesses
Specifically, he asserts that the trial court erred by failing to
follow the procedures for the use of non-credentialed interpreters
required by Tenn. Sup.Ct. R. 42, § 3(e) and (f). Even though Mr.
Banks did not object to the interpreter's qualifications at trial and
failed to include this issue in his motion for new trial, the Court of
Criminal Appeals determined that the trial court did not commit plain
error with regard to the use of the Arabic language interpreter. We
The guilt phase of the trial began on April 6,
2005, with Mr. Atilebawi as the State's first witness. Before Mr.
Atilebawi began to testify, the following colloquy occurred between
the trial court and Alladin Ghanem, the Arabic language interpreter:
THE COURT: And let me ask a couple of questions of
you for the record. Your name is Mr. Ghanem; correct?
THE INTERPRETER: Yes.
THE COURT: You are certified by the State of
Tennessee as a translator/interpreter for court proceedings; is that
THE INTERPRETER: Yes. Yes, Your Honor.
THE COURT: And specifically in Arabic language?
THE INTERPRETER: Yes.
THE COURT: And in a variety of dialects of the
Arabic language; correct?
THE INTERPRETER: Yes, sir.
THE COURT: Including the Iraqi language and
dialect and idioms and related matters?
THE INTERPRETER: I have record here also in the
state of Shelby County of doing this for over 15 years.
Mr. Banks did not request further voir dire
regarding Mr. Ghanem's qualifications, and he did not object to the
use of Mr. Ghanem as the interpreter during the trial. In addition,
Mr. Banks did not take issue with the qualifications or use of Mr.
Ghanem in his motion for new trial.
When a defendant raises an issue for the first time
on appeal, the issue will generally be deemed waived and will be
considered only within the limited parameters of an appellate court's
discretionary plain error review. State v. Faulkner, 154 S.W.3d 48,
58 (Tenn.2005); State v. Maddin, 192 S.W.3d 558, 561 (Tenn.Crim.App.2005);
see also Tenn. R.App. P. 3(e); Tenn. R.App. P. 36(a); Tenn.
R.Crim.App. 52(b). The defendant bears the burden of persuading the
appellate court that the trial court committed plain error and that
the error was of sufficient magnitude that it probably changed the
outcome of the trial. State v. Bledsoe, 226 S.W.3d 349, 354-55 (Tenn.2007).
Under plain error review, relief will only be granted when five
prerequisites are met: (1) the record clearly establishes what
occurred in the trial court, (2) a clear and unequivocal rule of law
was breached, (3) a substantial right of the accused was adversely
affected, (4) the accused did not waive the issue for tactical reasons,
and (5) consideration of the error is necessary to do substantial
justice. State v. Gomez, 239 S.W.3d 733, 737 (Tenn.2007).
Notwithstanding Mr. Ghanem's statement that he was
a certified Arabic language interpreter, Mr. Banks asserts on appeal
that Mr. Ghanem is not a certified or registered Arabic language
interpreter and asks the appellate court to take judicial notice of
this fact. The Court of Criminal Appeals did not address this
argument directly. Instead, the court accredited Mr. Ghanem's
uncontradicted statement that he was a certified Arabic language
interpreter and, therefore, held that the trial court was not required
to comply with the requirements of Tenn. Sup.Ct. R. 42, § 3(e) and
The Administrative Office of the Courts issues
photographic identification cards to interpreters who are either
certified or registered in accordance Tenn. Sup.Ct. R. 42 and also
maintains a current listing of all certified and registered
interpreters on its website.17
Accordingly, in cases requiring an interpreter, it is advisable for
the courts and the litigants to verify the interpreter's status by
requesting him or her to produce the identification card or by
consulting the Administrative Office of the Courts's website. In
circumstances where an interpreter is either non-credentialed or is
unable to demonstrate that he or she is credentialed, the court should
then follow the procedures mandated by Tenn. Sup.Ct. R. 42, § 3(e) and
Based on the record in this case, we cannot find
that the trial court erred, much less committed plain error, by
failing to follow the procedures set forth in Tenn. Sup.Ct. R. 42
§ 3(e) and (f). Mr. Ghanem stated that he was certified by the State
of Tennessee. Mr. Banks did not challenge this assertion or request
further voir dire of Mr. Ghanem. The trial court believed that Mr.
Ghanem was a certified interpreter. Accordingly, based on the
information available at the time, Tenn. Sup.Ct. R. 42 § 3(e) and (f)
were inapplicable. It would be utterly nonsensical to find that a
trial court erred by failing to follow the procedures required for
utilizing a non-credentialed interpreter when the trial court believed,
without any objection from the defendant, that it was utilizing a
The use an interpreter who is neither certified nor
registered is not reversible error in and of itself. It may rise to
the level of reversible error only in circumstances where a certified
or registered interpreter was readily available and where the use of
the non-credentialed interpreter undermined the fairness of the
proceeding in some way. This record does not indicate that a
certified or registered Arabic language interpreter was readily
available or that Mr. Ghanem's translation somehow undermined the
fairness of the proceeding.
It is difficult for this Court to discern whether
Mr. Banks is also making the separate argument in his appellate brief
that the trial court erred by failing to appoint a second interpreter
to verify the accuracy of Mr. Ghanem's translation for Mr. Banks and
his attorney, neither of whom speak Arabic. Nonetheless, we have
considered this argument, and we conclude that the trial court's
failure to appoint a second interpreter for this purpose was not
error. While Tenn. Sup.Ct. R. 42, § 3(g) permits the use of multiple
interpreters, the rule does not explicitly authorize the appointment
of a second interpreter for the purpose of assessing the accuracy of
the first interpreter.19
Because Mr. Banks never requested a second interpreter for this
purpose or any other purpose, the trial court did not err, much less
commit plain error, by failing to appoint a second interpreter to
review the translation of the first interpreter.
The Trial Court's Failure to Interview the
Jurors to Ascertain Whether They had been Influenced by a Former Juror
Mr. Banks takes issue with the trial court's
handling of a juror who was excused before the jury began its
deliberations on the penalty phase of the trial. Even though he did
not raise this issue in the trial court or the Court of Criminal
Appeals, he insists that the trial court committed plain error by not
immediately removing the juror and by failing to question the
remaining jurors to ascertain whether they had been influenced by the
former juror. We have determined that the trial court did not commit
plain error by failing to dismiss the juror immediately or by failing
to interview the jury on its own motion as to the existence of
potential prejudice either after it excused the juror or after the
jury returned its verdict.
We reiterate that while the decisions of the Court
of Criminal Appeals and the Court of Appeals may require the parties
to reframe their issues or to adjust their arguments when they seek
review by this Court, litigants are not free simply to reserve issues
until their case reaches this Court. When a defendant fails to
present an issue on appeal to the Court of Criminal Appeals, that
issue is not properly before this Court and is, instead, waived. See
State v. Butler, 108 S.W.3d 845, 854 (Tenn.2003); State v. Hall, 8
S.W.3d 593, 596 n. 1 (Tenn.1999); State v. Buggs, 995 S.W.2d 102, 109
(Tenn.1999). Nonetheless, we have determined that the interests of
justice prompt us to address this issue to determine whether the trial
court committed plain error by not interviewing the jury.
During a break in the trial on April 8, 2005, Mr.
Banks's trial counsel informed the trial court that Dorothy Rooks, a
member of the jury venire for Mr. Banks's trial who had not been
seated on the jury, informed one of the defense investigators, a
friend of Ms. Rooks, that juror William Stroud had made a disturbing
comment to her about the case prior to the trial. According to Mr.
Banks's lawyer, Ms. Rooks told the investigator that Mr. Stroud
commented that he was “hoping that he would end up on this jury so
that he could convince people to find him guilty and we'd be out by
the weekend.” The trial court expressed concern about the comment
and decided to conduct a jury-out hearing to hear directly from Ms.
Later that day, after the State rested its case-in-chief,
Ms. Rooks appeared in court and, with the jury excused, recounted what
she had heard. Ms. Rooks stated that Mr. Stroud expressed
disappointment about not having been selected as a juror in a
different case in which she and Mr. Stroud had both been members of
the jury venire. Specifically, Ms. Rooks recalled that Mr. Stroud
stated “I was going to drive that sucker.” Ms. Rooks indicated that
Mr. Stroud appeared to be adamant, but she was not sure exactly what
Mr. Stroud meant. She indicated that the other case was also a first
degree murder case but not a capital case. Ms. Rooks stated that she
became concerned when she learned that Mr. Stroud had been selected as
a juror in Mr. Banks's case. She volunteered that “I just thought
that it didn't seem like it was a jury of his peers. I mean, there
was only one black lady there.”
After commenting on how it had been impressed with
Mr. Stroud based upon his answers during voir dire and his
attentiveness during the proceedings, the trial court asked the
bailiffs whether they had observed anything that suggested that Mr.
Stroud was interested in railroading Mr. Banks. After the bailiffs
responded in the negative, the trial court informed the attorneys that
it would need to consider how to address this matter. The trial
court also stated that questioning Mr. Stroud about a “casual
statement he made [about another case] on the sidewalk while smoking a
cigarette” could be counterproductive.
Later the same day, the court again addressed the
matter of Mr. Stroud. The trial court stated:
I have a little bit of concern, I have to be honest
with you, that [Ms. Rooks's] greater concern might be the racial make-up
of the jury because she let-she made that statement under oath when
she testified today. And I don't know why that statement would be
relevant to the issue we were discussing and for which she came down
here, unless it was really bubbling right beneath the surface and it
finally came out when she took the stand. And that, perhaps, is the
overriding reason[ ] for her lodging the complaint. I'm concerned
Nevertheless, the trial court decided the more
prudent course would be to replace Mr. Stroud with an alternate juror.
This took place when the trial court excused the other alternate
jurors before the jury deliberations began. Outside the presence of
the other jurors, the trial court explained its reasoning directly to
There was a juror that was on this larger panel ․ [who]
overheard a remark that was attributed to you outside this building
after the close of court or y'all had been excused [from the jury
venire for a different trial]․ [T]he question having been raised by
this juror concerning that remark and how it may affect your
impartiality in this case was such that after agonizing over whether
to remove you from the jury or not, I felt that just out of an
abundance of caution so that no question could be raised in the event
that the jury finds Mr. Banks guilty, that I would insert the
alternate and remove you from the jury.
Mr. Stroud was excused prior to and did not
participate in the jury deliberations in this case. Essentially, he
became the equivalent of an excused alternate juror. Mr. Banks did
not request the trial court to interview the jury when it dismissed Mr.
Stroud before deliberations started and, likewise, did not request the
trial court to interview the jury after it returned a guilty verdict
to ascertain whether the verdict had been influenced by Mr. Stroud's
presence. Therefore, our review of the process the trial court used
to excuse Mr. Stroud is for plain error.
Mr. Banks's arguments on this issue provide neither
a logically nor a legally supported basis for finding error, much less
plain error, in the trial court's failure to immediately excuse Mr.
Stroud after hearing Ms. Rooks's testimony regarding his comments in
another, unrelated case. As far as this record shows, the trial
court had no basis to be concerned about Mr. Stroud's presence on the
jury before Mr. Banks's trial counsel expressed concern about
statements he had purportedly made to Ms. Rooks.
Because the report of Mr. Stroud's comments was
second-hand, the trial court decided to hear directly from Ms. Rooks
before deciding whether remedial action was warranted. When the
trial court questioned Ms. Rooks, it became apparent that the
statements attributed to Mr. Stroud did not involve Mr. Banks's case,
as was originally represented, but rather an earlier, unrelated case
in another court. Rather than excusing Mr. Stroud immediately, the
trial court allowed the lawyers to make their final arguments and then
charged the jury before it replaced Mr. Stroud with an alternate juror.
We decline to find plain error with regard to the
timing of Mr. Stroud being excused from the jury. The presentation
of the evidence was essentially completed when the defense raised a
concern about Mr. Stroud. After the trial court interviewed Ms.
Rooks, the jury was alone together for only one additional brief break
before the trial court completed its charge to the jury and replaced
Mr. Stroud with an alternate juror. Accordingly, we decline to find
the trial court committed plain error by waiting to excuse Mr. Stroud
until immediately before the jury retired to deliberate.
By the same token, we decline to find that the trial court
committed plain error by not interviewing 20
the other jurors, either before they retired or following their
verdict to ascertain whether they had been influenced by Mr. Stroud's
presence on the jury. Mr. Banks did not request the trial court to
interview the jurors following Ms. Rooks's testimony and cites no
authority requiring the trial court to do so on its own motion. He
has failed to demonstrate that the trial court's failure to interview
the jurors prior to deliberations violated a clear and unequivocal
rule of law or adversely affected one of his substantial rights.
Accordingly, we decline to find that the trial court committed plain
error by failing to interview the jurors prior to their deliberations.
In the same vein, we decline to find that the trial
court committed plain error by not interviewing the jurors following
the verdict to determine whether they had been improperly influenced
by Mr. Stroud. Defendants in criminal cases have a statutory right
to have the jury polled upon request. Tenn.Code Ann. § 20-9-508
(1994). However, they waive this right if they fail to make a timely
request that the jury be polled. Rice v. State, 4 Tenn.Crim.App. 600,
605, 475 S.W.2d 178, 180 (1971). Mr. Banks has failed to demonstrate
that the trial court's failure to interview the jurors regarding Mr.
Stroud after they returned their verdict violated a clear and
unequivocal rule of law or adversely affected one of his substantial
The Trial Court's Failure to Charge Certain
Mr. Banks argues that the trial court violated his
constitutional rights by failing to charge certain lesser-included
offenses. Mr. Banks requested some, but not all, of these charges at
trial. The State asserts that these arguments have either been
waived or are not meritorious. The Court of Criminal Appeals found
no reversible error. We affirm that decision.
Mr. Banks was indicted on four counts. He
requested the trial court to charge the jury regarding forty-five
lesser-included offenses of these offenses. In addition to charging
the jury regarding the four offenses for which Mr. Banks was indicted,
the trial court charged the jury with nineteen of the forty-five
requested lesser-included offense instructions. The jury convicted
Mr. Banks of the greatest charge for each count of the four-count
indictment. On appeal, Mr. Banks insists that the trial court
committed reversible error by failing to give instructions regarding
twenty-six lesser-included offenses. Mr. Banks requested ten of
these instructions at trial. He no longer takes issue on appeal with
the trial court's failure to charge sixteen lesser-included offenses
he requested at trial. However, for the first time on appeal, he
insists that the trial court should have charged sixteen other lesser-included
offenses that he had not requested at trial. Our review of the trial
court's failure to charge the latter sixteen instructions is for plain
Neither the State nor Mr. Banks have offered
detailed legal arguments regarding whether each of the purported
lesser-included offenses qualify as lesser-included offenses under the
Burns test. Thus, we will assume for purposes of this opinion that
the offenses enumerated by Mr. Banks meet the requirements to qualify
as lesser-included offenses. Nevertheless, we find that the trial
court did not commit reversible error by failing to charge the jury
regarding the twenty-six lesser-included offenses referenced in Mr.
Whether a particular instruction regarding a lesser-included
offense should have been given is a mixed question of law and fact. State
v. Hatfield, 130 S.W.3d 40, 41 (Tenn.2004). We review mixed
questions of law and fact de novo with no presumption of correctness.
Carpenter v. State, 126 S.W.3d 879, 892 (Tenn.2004). When called
upon to address a purported failure to charge lesser-included offenses,
the reviewing court considers the following three questions: (1)
whether the offense is a lesser-included offense; (2) whether the
evidence supports a lesser-included offense instruction; and (3)
whether the failure to give the instruction is harmless error. State
v. Allen, 69 S.W.3d 181, 187 (Tenn.2002).
This Court fashioned the test for determining
whether an offense is a lesser-included offense in State v. Burns, 6
S.W.3d 453 (Tenn.1999).
An offense is a lesser-included offense if:
(a) all of its statutory elements are included
within the statutory elements of the offense charged; or
(b) it fails to meet the definition in part (a)
only in the respect that it contains a statutory element or elements
(1) a different mental state indicating a lesser
kind of culpability; and/or
(2) a less serious harm or risk of harm to the same
person, property or public interest; or
(c) it consists of
(1) facilitation of the offense charged or of an
offense that otherwise meets the definition of lesser-included offense
in part (a) or (b); or
(2) an attempt to commit the offense charged or an
offense that otherwise meets the definition of lesser-included offense
in part (a) or (b); or
(3) solicitation to commit the offense charged or
an offense that otherwise meets the definition of lesser-included
offense in part (a) or (b).
State v. Burns, 6 S.W.3d at 466-67. Where “a
lesser offense is not included in the offense charged, then an
instruction should not be given, regardless of whether evidence
supports it.” State v. Burns, 6 S.W.3d at 467. Thus, if the
purported lesser-included offense is not actually a lesser-included
offense, then the court's inquiry ends.
If, however, “a lesser offense is included in the
charged offense, the question remains whether the evidence justifies a
jury instruction on such lesser offense.” State v. Burns, 6 S.W.3d at
467. As for the standard for assessing whether the evidence is
sufficient to require an instruction on a lesser-included offense,
Tenn.Code Ann. § 40-18-110(a) (2006) provides that
the trial judge shall not instruct the jury as to
any lesser included offense unless the judge determines that the
record contains any evidence which reasonable minds could accept as to
the lesser included offense. In making this determination, the trial
judge shall view the evidence liberally in the light most favorable to
the existence of the lesser included offense without making any
judgment on the credibility of evidence. The trial judge shall also
determine whether the evidence, viewed in this light, is legally
sufficient to support a conviction for the lesser included offense.
As a general matter, evidence that is sufficient
“to warrant an instruction on the greater offense also will support an
instruction on a lesser offense under Part (a) of the Burns test.” State
v. Allen, 69 S.W.3d at 188.
In subsequent decisions, this Court has narrowed
the application of Part (c) of the Burns test by clarifying that
instructions are unnecessary where the evidence clearly establishes
completion of the criminal act 21
or simply does not involve proof of solicitation or facilitation. State
v. Wilson, 211 S.W.3d 714, 721 n. 2 (2007); State v. Robinson, 146
S.W.3d at 487 n. 7; see also State v. Marcum, 109 S.W.3d 300, 303-04
(Tenn.2003); State v. Ely, 48 S.W.3d 710, 719 (Tenn.2001). This
result follows because for the “lesser offenses under part (c), proof
of the greater offense will not necessarily prove the lesser offense.”
State v. Allen, 69 S.W.3d at 188.
The failure to give an instruction on an offense
that is, in fact, a lesser-included offense and is supported by the
evidence is a non-structural constitutional error. State v. Page, 184
S.W.3d 223, 230 (Tenn.2006). When such a failure occurs, a new trial
must be granted unless the reviewing court determines that error was
harmless beyond a reasonable doubt. State v. Thomas, 158 S.W.3d at
379; see also State v. Rodriguez, 254 S.W.3d 361, 371 (Tenn.2008).
When undertaking a harmless error analysis in this context, the
reviewing court “should conduct a thorough examination of the record,
including the evidence presented at trial, the defendant's theory of
defense, and the verdict returned by the jury.” State v. Allen, 69
S.W.3d at 191.
There are two approaches for demonstrating that a
failure to give an instruction on a lesser-included offense is
harmless error. State v. Locke, 90 S.W.3d 663, 675 (Tenn.2002). The
first approach is implicated where the trial court instructs the jury
as to the charged offense as well as other lesser-included offenses
thereof but does not instruct the jury regarding all of the lesser-included
offenses supported by the evidence. When the jury convicts the
defendant of the greater charged offense rather than the lesser-included
offense or offenses, the jury necessarily rejects all of the other
lesser offenses. State v. Locke, 90 S.W.3d at 672; State v. Allen,
69 S.W.3d at 191; State v. Williams, 977 S.W.2d 101, 106 (Tenn.1998).
Where one of the charged but rejected lesser-included offenses is an
intermediate or buffer offense standing between the errantly omitted
lesser-included offense and the offense for which the defendant was
convicted, the charging error is shown to be harmless beyond a
reasonable doubt. State v. Locke, 90 S.W.3d at 675; State v. Allen,
69 S.W.3d at 190.
The second approach requires the reviewing court to
consider the evidence and then to decide “whether a reasonable jury
would have convicted the defendant of the lesser-included offense
instead of the charged offense.” State v. Richmond, 90 S.W.3d 648,
662 (Tenn.2002) (emphasis in original). If no reasonable jury would
have convicted the defendant of the uncharged lesser-included offense
rather than the offense for which the defendant was convicted, then
the failure to charge is harmless beyond a reasonable doubt. State
v. Locke, 90 S.W.3d at 675.
For all trials conducted on or after January 1,
the defendant must file a written request for an instruction on a
lesser-included offense as a prerequisite to taking issue on appeal
with the failure to give an instruction on the offense. Failure to
request in writing an instruction on a lesser-included offense results
in a waiver of a right to take issue on appeal with the omission of
the charge. Tenn.Code Ann. § 40-18-110(c).
However, because defendants have a constitutional
right to a correct and complete charge of the law applicable to their
reviewing court may review the instructions to determine whether the
trial court committed plain error by failing to instruct on a lesser-included
offense, even if an instruction on the offense was not requested in
writing. State v. Wilson, 211 S.W.3d at 720-21; State v. Page, 184
S.W.3d at 230-31. Under plain error review, relief will be granted
only where five prerequisites are met: (1) the record clearly
establishes what occurred in the trial court; (2) a clear and
unequivocal rule of law was breached; (3) a substantial right of the
accused was adversely affected; (4) the accused did not waive the
issue for tactical reasons; and (5) consideration of the error is
necessary to do substantial justice. State v. Gomez, 239 S.W.3d at
737. Furthermore, on a review for plain error, the defendant bears
the burden of persuading the appellate court that the error was of
sufficient magnitude that its commission probably changed the outcome
of the trial. State v. Bledsoe, 226 S.W.3d at 354-55. To rise to
the level of plain error, “[a]n error would have to [be] especially
egregious in nature, striking at the very heart of the fairness of the
judicial proceeding.” State v. Page, 184 S.W.3d at 231.
The Attempt or Solicitation Offenses
Mr. Banks contends that the trial court committed
reversible error by failing to charge ten attempt or solicitation
offenses as lesser-included offenses of premeditated first degree
murder, first degree murder in the perpetration of a robbery, and
especially aggravated robbery. With regard to his first degree
premeditated murder conviction, Mr. Banks asserts that the jury should
have been instructed regarding attempted first degree murder,
attempted second degree murder, and attempted voluntary manslaughter.
As to his first degree murder in the perpetration of a robbery
conviction, Mr. Banks claims error in failing to charge the “requisite
attempt offenses.” In relation to his especially aggravated robbery
conviction, Mr. Banks argues that the trial court should have charged
the jury as to solicitation to commit attempted especially aggravated
robbery, solicitation to commit attempted aggravated robbery,
solicitation to commit attempted robbery, attempted especially
aggravated robbery, attempted aggravated robbery, and attempted
robbery. He requested instructions for three of these ten offenses:
attempted especially aggravated robbery, attempted aggravated robbery,
and attempted robbery. Our review of the remaining seven attempt/solicitation
charges will be limited to a review for plain error.
In our post-Burns decisions, this Court has
narrowed the circumstances when it is error to not charge attempt,
solicitation, and facilitation offenses which qualify as lesser-included
offenses under Part (c) of the Burns test. With regard to attempt
both of which are inchoate offenses, where the evidence clearly
establishes the completion of the crime, it is unnecessary for the
trial court to charge the jury as to attempt or solicitation. State
v. Robinson, 146 S.W.3d at 487 n. 7 (noting that “instructions are not
required on either solicitation or attempt where the evidence clearly
establishes completion of the charged offense”); see also State v.
Wilson, 211 S.W.3d at 721 n. 2; State v. Marcum, 109 S.W.3d at
303-04; State v. Ely, 48 S.W.3d at 719.
The State presented evidence that clearly
established the completion of all four of the charged offenses. Mr.
Al-Maily was dead. Mr. Atilebawi sustained serious bodily injuries.
Messrs. Al-Maily's and Atilebawi's property was taken. Mr. Banks
neither presented evidence nor elicited testimony on cross-examination
suggesting the applicability of attempt or solicitation to the
premeditated first degree murder, first degree murder in the
perpetration of a robbery, or especially aggravated robbery counts.
In other words, the evidence did not involve crimes that were
attempted or solicited but were not completed. Accordingly, we find
no error, much less plain error, in the trial court's failure to give
the ten attempt and solicitation charges referenced by Mr. Banks on
appeal as lesser-included offenses of premeditated first degree murder,
first degree murder in the perpetration of a robbery, and especially
aggravated robbery, respectively.
The Omission of Lesser-Included Offenses
Rendered Harmless by the Conviction of the Greater Offense
Mr. Banks also contends that the trial court
committed reversible error by failing to charge the jury regarding (1)
criminally negligent homicide and reckless endangerment, (2)
facilitation to commit second degree murder, reckless homicide, and
criminally negligent homicide as well as reckless endangerment and
criminally negligent homicide, (3) aggravated assault, facilitation of
aggravated assault, attempted aggravated assault, assault, and
reckless endangerment, and (4) theft, as lesser-included offenses of
first degree premeditated murder, first degree murder in the
perpetration of a robbery, criminal attempt to commit first degree
murder, or especially aggravated assault. Mr. Banks requested
instructions regarding six of these thirteen offenses. Specifically,
he requested the trial court to instruct the jury regarding criminally
negligent homicide and reckless endangerment with regard to the first
degree premeditated murder count, facilitation to commit second degree
murder and criminally negligent homicide in relation to the first
degree murder in the perpetration of a robbery count, reckless
endangerment with regard to the criminal attempt to commit first
degree murder count, and theft as a lesser-included offense of
especially aggravated assault. Because Mr. Banks did not request the
trial court to charge the other lesser-included offenses, our review
regarding these offenses will be for plain error.
For each of the four counts charged in the
indictment, the trial court charged the jury with lesser-included
offenses including intermediate offenses, buffer offenses standing
between the charge Mr. Banks asserts the trial court erred by failing
to instruct the jury upon and the charge for which Mr. Banks was
Accordingly, any potential error in failing to charge the eleven
above-referenced lesser-included offenses was shown to be harmless
error beyond a reasonable doubt through the jury's finding that Mr.
Banks was guilty of the greater offense and rejection of the
intermediate lesser-included offenses. State v. Locke, 90 S.W.3d at
675; State v. Allen, 69 S.W.3d at 190; State v. Williams, 977 S.W.2d
The Omission of Lesser-Included Offenses For
Which No Reasonable Jury Would Have Convicted Mr. Banks
Mr. Banks also contends that the trial court erred
by failing to charge the jury regarding voluntary manslaughter and
facilitation to commit voluntary manslaughter as lesser-included
offenses of first degree murder in the perpetration of a robbery. He
did not request either instruction. Thus, our review of the failure
to charge these offenses is limited to plain error review.
Mr. Banks bears the burden of demonstrating the
failure to give the voluntary manslaughter and facilitation to commit
voluntary manslaughter charges was an error of sufficient magnitude
that it probably changed the outcome of trial. State v. Bledsoe, 226
S.W.3d at 354-55. He has not carried this burden, and, in fact, the
record demonstrates conclusively that these instructions would have
been of no consequence.
The trial court charged the jury regarding the
lesser-included offense charges of voluntary manslaughter and
facilitation of voluntary manslaughter in connection with the
premeditated first degree murder count. The jury rejected these
lesser-included offenses in favor of finding Mr. Banks guilty of
premeditated first degree murder. Thus, the jury concluded that Mr.
Banks was “sufficiently free from excitement and passion as to be
capable of premeditation,” 26
when he shot Mr. Al-Maily rather than acting with “adequate
provocation sufficient to lead a reasonable person to act in an
irrational manner.” 27
Accordingly, the trial court did not commit plain error in failing to
instruct the jury as to voluntary manslaughter and facilitation to
commit voluntary manslaughter as lesser-included offenses of first
degree murder in the perpetration of a robbery.
Finally, Mr. Banks argues that the trial court
erred by failing to instruct the jury regarding aggravated assault as
a lesser-included offense of especially aggravated robbery. He
requested this instruction. Therefore, our review assesses whether a
reasonable jury would have convicted Mr. Banks of aggravated assault
instead of especially aggravated robbery. On this question, the
State bears the burden of demonstrating that the error was harmless
beyond a reasonable doubt.
The trial court instructed the jury regarding
several underlying offenses related to robbery which the jury rejected
in favor of the greater charge, especially aggravated robbery. The
variation between these lesser-included offenses, the offense for
which Mr. Banks was convicted, and the offense to which Mr. Banks
assigns error in the trial court's failure to charge the jury is the
robbery component. Robbery, under Tennessee law, “is the intentional
or knowing theft of property from the person of another by violence or
putting the person in fear.” Tenn.Code Ann. § 39-13-401(a) (1997).
Based on the overwhelming evidence of Mr. Banks's deprivation of Mr.
Atilebawi of his property through violence including Mr. Atilebawi's
testimony, both of Mr. Banks's confessions, the police recovering Mr.
Atilebawi's property in Mr. Banks's possession, and the absence of
countervailing evidence, we conclude that no reasonable jury would
have found Mr. Banks guilty of aggravated assault rather than
especially aggravated robbery. Accordingly, we conclude that any
error in failing to charge this lesser-included offense was harmless
beyond a reasonable doubt.
The Jury Instruction with Regard to Victim
After careful study of the parties' briefs with
regard to the issue of the coercive effect of the instruction
regarding the consideration of victim impact evidence, we are
persuaded that the decision of the Court of Criminal Appeals on this
issue should be affirmed. Moreover, because we find that the opinion
of the Court of Criminal Appeals, State v. Banks, 2007 WL 1966039, at
*38-40 adequately states the facts and the law on this issue, we adopt
this portion of the opinion as the opinion of this Court and include
it as an appendix to this opinion.
The Prosecutors' Closing Arguments During the
Guilt Phase of the Trial
Mr. Banks claims that the prosecutors made six
statements during their closing arguments that require a reversal of
his convictions. The State responds that Mr. Banks did not object to
several of these statements during trial and that Mr. Banks did not
mention any of these statements in his motion for new trial.28
The Court of Criminal Appeals reviewed each of these statements and
determined either (1) that they were not error, (2) that the trial
court gave appropriate curative instructions, or (3) that the
instruction was not so prejudicial as to require reversal of the
Closing arguments have special importance in the
adversarial process. Their purpose is to sharpen and to clarify the
issues that must be resolved in a criminal case. Herring v. New York,
422 U.S. 853, 862, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975). They
accomplish this purpose by enabling the opposing lawyers to present
their theory of the case and to point out the strengths and weaknesses
in the evidence to the jury. Christian v. State, 555 S.W.2d 863, 866
(Tenn.1977); 11 David L. Raybin, Tennessee Practice: Criminal
Practice and Procedure § 29.01, at 72 (1985) (“Tennessee Criminal
Practice and Procedure ”). Thus, both the State and the defendant
have an ancient right 29
to make closing arguments. See Tenn. R.Crim. P. 29.
The lawyers representing the defendant and the
State in a criminal trial are expected to be zealous advocates. Burlison
v. State, 501 S.W.2d 801, 806 (Tenn.1973) (noting that “the State is
entitled to advocacy, as well as the defendant”). Their closing
arguments provide them with an opportunity to persuade the jury,
Tennessee Criminal Practice and Procedure § 29.2, at 73, and thus they
should be given great latitude in both the style and the substance of
their arguments. Post v. State, 580 S.W.2d 801, 808 (Tenn.Crim.App.1978);
6 Wayne R. LaFave et al. Criminal Procedure § 24.7(b), at 456 (3d
ed. 2007) (“Criminal Procedure ”). Closing arguments in criminal
cases have a “rough and tumble quality” about them, State v. Skakel,
276 Conn. 633, 888 A.2d 985, 1060-61 (2006), because they are
traditionally the one place in the trial where the lawyers are given
the greatest leeway in their manner of expression. Criminal Procedure
§ 24.7(b), at 456-57.
Prosecutors are expected to pursue their cases with
thoroughness and vigor within the bounds of the law and professional
conduct. State v. Culbreath, 30 S.W.3d 309, 314 (Tenn.2000); Judge
v. State, 539 S.W.2d 340, 344 (Tenn.Crim.App.1976). While the
interests of the State are their paramount concern, their actions must
be tempered by their impartial search for justice and their obligation
to see to it that the defendant receives a fair trial. State v.
White, 114 S.W.3d 469, 477 (Tenn.2003); Burlison v. State, 501 S.W.2d
at 806; Watkins v. State, 140 Tenn. 1, 5, 203 S.W. 344, 345 (1918).
In the words of Justice Sutherland, while prosecutors “may strike hard
blows, ․ [they are] not at liberty to strike foul ones.” Berger v.
United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935).
A prosecutor's closing arguments have great weight
on jurors. Knight v. State, 190 Tenn. 326, 332, 229 S.W.2d 501, 503
(1950); Turner v. State, 72 Tenn. 206, 210 (1879). Accordingly, a
prosecutor's closing argument must be temperate, must be based on the
evidence introduced at trial, and must be pertinent to the issues in
the case. State v. Middlebrooks, 995 S.W.2d 550, 557 (Tenn.1999); Russell
v. State, 532 S.W.2d 268, 271 (Tenn.1976). However, even though the
scope and tenor of their arguments may be limited, State v. Thomas,
158 S.W.3d 361, 413 (Tenn.2005) (appendix), prosecutors, no less than
defense counsel, may use colorful and forceful language in their
closing arguments, as long as they do not stray from the evidence and
the reasonable inferences to be drawn from the evidence, United States
v. Mullins, 446 F.3d 750, 759 (8th Cir.2006), or make derogatory
remarks or appeal to the jurors' prejudices, State v. Reid, 164 S.W.3d
A criminal conviction should not be lightly
overturned solely on the basis of the prosecutor's closing argument. United
States v. Young, 470 U.S. 1, 11-13, 105 S.Ct. 1038, 84 L.Ed.2d 1
(1985); State v. Bane, 57 S.W.3d 411, 425 (Tenn.2001) (holding that a
prosecutor's improper closing argument does not automatically warrant
reversal). An improper closing argument will not constitute
reversible error unless it is so inflammatory or improper that if
affected the outcome of the trial to the defendant's prejudice. State
v. Thacker, 164 S.W.3d 208, 244 (Tenn.2005) (appendix); State v.
Cribbs, 967 S.W.2d 773, 786 (Tenn.1998); see also State v. Reid, 164
S.W.3d at 321. When called upon to review the propriety of a
prosecutor's closing argument, the court should consider: (1) the
conduct at issue in light of the facts and circumstances of the case,
(2) the curative measures undertaken by the trial court and the
prosecution, (3) the intent of the prosecutor in making the improper
argument, (4) the cumulative effect of the improper argument and any
other errors in the record, and (5) the relative strengths and
weaknesses of the case. State v. Reid, 164 S.W.3d at 321; State v.
Middlebrooks, 995 S.W.2d at 559-60; see also Tennessee Criminal
Practice and Procedure § 29.61, at 112.
Trial courts have significant discretion to control
closing arguments. State v. Stephenson, 195 S.W.3d 574, 603 (Tenn.2006)
(appendix); Terry v. State, 46 S.W.3d 147, 156 (Tenn.2001).
Ordinarily, counsel must object contemporaneously to a perceived
improper argument. State v. Thomas, 158 S.W.3d at 413 (appendix); State
v. Keen, 926 S.W.2d 727, 736 (Tenn.1994). However, when flagrantly
improper arguments are made, the trial court, with or without
objection, should step in and take proper curative action. Watkins v.
State, 140 Tenn. at 9, 203 S.W. at 346 (holding that the trial court
should have given a “stern rebuke” “promptly and voluntarily” to a
prosecutor who made a grossly improper argument); Turner v. State, 72
Tenn. at 210; Sparks v. State, 563 S.W.2d 564, 569 (Tenn.Crim.App.1978).
Some arguments may be so exceptionally flagrant that they constitute
plain error and provide grounds for reversal even if they were not
objected to. State v. Reid, 91 S.W.3d at 283-84.30
The Prosecutor's Argument Regarding the Jury's
Role with Regard to Mitigating Circumstances
The first statement challenged by Mr. Banks relates
to the jury's role with regard to mitigating circumstances. The
prosecutor argued the following to the jury:
[Y]ou're going to get a whole list of 17 or 18 of
them [ (mitigating circumstances) ], a whole slew of them. But the
Court is not telling you that any of those are mitigating
circumstances. The Court can't do that because that's your job.
That's your function. And you get to decide whether any of these 17
or 18 decisions are mitigating circumstances.
Mr. Banks objected to this statement and requested
a curative instruction. During a bench conference, the trial court
explained that this statement was incorrect and permitted the
prosecutor to correct her own error. Following the bench conference,
the prosecutor argued to the jury that:
In a few moments, the Court will present you with a
list of things that are labeled ‘mitigating circumstances.’ And it
is up to you to accept or reject which ones apply in this case, if any.
And after you determine whether any of these are to be considered,
during your determination you also have to assess the weight to give
each and every single one of these mitigating circumstances, if any.
Mr. Banks did not object to this description of the
jury's role with regard to mitigating circumstances.
Following the closing arguments, the trial court
gave the following instruction with regard to assessing mitigating
circumstances as part of its general instructions:
Mitigating circumstances. Tennessee law provides
that in arriving at the punishment, the jury shall consider as
previously indicated any mitigating circumstances raised by the
evidence which shall include but are not limited to the following: ․
[O]ne, the defendant has no significant history of prior criminal
activity. Convictions for the crimes of aggravated assault,
aggravated burglary, domestic violence assault, and attempted
aggravated burglary are not aggravating circumstances to be considered
in determining the penalty but a conviction of that crime may be
considered ․ in determining whether or not the defendant has a
significant history of prior criminal activity.
Two, the youth of the defendant at the time of the
Three, the defendant was an accomplice in the
murder committed by another person and the defendant's conduct was
Four, the defendant is HIV positive and as a result
of his illness, the defendant has attempted to take his own life.
Five, the defendant has held several jobs in spite
of his illness.
Six, the defendant transferred from school to
school and was unable to maintain friendships established at school
and did not complete high school.
Seven, the defendant was one of ten children and he
received only limited support from his mother and father.
Eight, the defendant's family moved around from
place to place and were never really together. Additionally, some of
the children were removed from the home.
Nine, the defendant's two younger sisters were
Ten, the defendant's mother is currently
incarcerated and has been incarcerated for the majority of the
defendant's life. In addition, the defendant's brother Robert Hill
was incarcerated during a majority of the defendant's life.
Eleven, ․ the defendant was the youngest of seven
brothers and the brothers beat the defendant and picked on him to the
point that others had to intervene.
Twelve, despite lack of family support, the
defendant was an active member of Leewood Church and participated in
the youth activities.
Thirteen, the defendant cared for his pets, tried
to improve his domestic skills by learning to cook and has a talent
Fourteen, the defendant has been a good inmate.
Fifteen, while incarcerated the defendant has
completed numerous programs aimed at rehabilitation.
Sixteen, the defendant has touched the lives of
others in a positive way.
Seventeen, both the defendant's family and friends
from church will continue to keep in contact with the defendant and
support him while he is incarcerated.
And [eighteen], any other mitigating factor which
is raised by the evidence produced either by the prosecution or the
defense at either the guilt or the sentencing hearing. That is, you
shall consider any aspect of defendant's character or record or any
aspect of the circumstances of the offense favorable to the defendant
which is supported by the evidence.
No distinction shall be made between mitigating
circumstances listed and those otherwise raised by the evidence. The
defendant does not have the burden of proving mitigating circumstances.
There is no requirement of jury unanimity as to any particular
mitigating circumstance or that you agree on the same mitigating
Tennessee law provides that the jury shall consider
any mitigating circumstances which may include, but are not limited to,
those specified in Tenn.Code Ann. § 39-13-204(j) (2006). While the
jury must consider these circumstances, the ultimate determination of
whether “mitigating evidence exists and the weight to be given to
aggravating and mitigating circumstances are issues for the jury.” State
v. Morris, 24 S.W.3d 788, 799 (Tenn.2000); see also, e.g., State v.
Pike, 978 S.W.2d 904, 918 (Tenn.1998); State v. Mann, 959 S.W.2d 503,
In accordance with the catch-all provision in
Tenn.Code Ann. § 39-13-204(j)(9), the defendant may identify any other
mitigation raised by the evidence as a mitigating circumstance.
However, the jury is then free to determine whether the suggested
circumstance is applicable to the case and the weight that should be
given to that particular circumstance. For example, Mr. Banks
asserted that the fact that he can cook should be considered as a
mitigating circumstance. Accordingly, the trial court instructed the
jury that Mr. Banks offered his ability to cook as a mitigating
circumstance and that they were required to consider it. However,
the jury remained free to determine whether, in fact, Mr. Banks had
learned to cook and, if so, whether being able to cook has any
particular mitigation value.
We have found statements similar to the
prosecutor's original statement in this case to fall within the realm
of permissible forms of argument. State v. Brimmer, 876 S.W.2d 75, 85
(Tenn.1994) (declining to find that arguing that “there were no
mitigating statements in the case” was reversible error). In
addition, the prosecutor immediately corrected her statement, and the
trial court gave the jury a complete and proper instruction regarding
its role when considering the mitigating evidence. Juries are
presumed to follow the trial court's instructions. State v. Young,
196 S.W.3d 85, 111 (Tenn.2006); State v. Shaw, 37 S.W.3d 900, 904 (Tenn.2001).
With the trial court's instructions requiring the jury to consider
the mitigating circumstances, there is no basis to conclude that the
prosecutor's original statement rises to level of being reversible
The Prosecutor's Reference to a Prior Conviction
for Theft of Property
In her argument challenging Mr. Banks's assertion
that he had no significant criminal history, the prosecutor mentioned
an incident involving a theft of property that occurred when Mr. Banks
was a juvenile. Mr. Banks objected, and during a bench conference,
the trial court instructed the prosecutor to explain to the jury that
it could not consider this incident. Following the bench conference,
the prosecutor stated to the jury:
I apologize. I mis[-]spoke. The theft of
property that you heard about was one that wasn't sustained or handled
non-judicially, which means it did not stay on the defendant's
Without further objection by Mr. Banks, the
prosecutor detailed other criminal offenses committed by Mr. Banks,
including aggravated assault, aggravated burglary, criminal attempt to
commit aggravated burglary, and domestic assault.
Mr. Banks insists that the prosecutor's correction
of her improper statement regarding the juvenile theft of property
offense did not cure the error. We disagree. The trial court did
not list the juvenile theft conviction among the offenses that the
jury could consider in ascertaining the applicability and weight of
the claimed mitigating circumstance that Mr. Banks did not have a
significant criminal history. In light of the number of and
seriousness of the other offenses that Mr. Banks had committed, as
well as the fact that the trial court did not include the juvenile
theft offense among those that the jury could consider, we decline to
find that the prosecutor's original erroneous statement requires a
reversal of Mr. Banks's conviction.
The Prosecutor's Reference to Giving Weight to
Other Mitigating Circumstances
Mr. Banks also argues that the prosecutor committed
reversible error when she argued:
[W]hen you look at those mitigating circumstances
and when you think about whether or not to give them any weight, I
want you to each ask yourself if I give this one weight, what else do
I have to give weight? If I give weight to the fact that he's HIV [positive],
what else do I give weight to those that have cancer and other
diseases and tumors and high blood pressure? That's what I want you
to ask yourself.
Even though he did not object to this argument or
include it in his motion for new trial, Mr. Banks now insists that
this argument “violated ․ [his] state and federal constitutional
rights to due process, to a fair jury trial and protections against
cruel and unusual punishment.” We will review this issue using the
plain error analysis.
The State is permitted to argue that mitigating
are not applicable based upon the evidence or that a circumstance is
of little or no weight in terms of actual mitigation value. See, e.g.,
State v. Hall, 976 S.W.2d 121, 170 (Tenn.1998); State v. Brimmer, 876
S.W.2d at 85; State v. Howell, 868 S.W.2d 238, 258 (Tenn.1993). The
State's argument here is neither inflammatory nor improper, thus we
find no error, much less plain error.
The Prosecutor's Reference to Mitigating
Circumstances as Special Treatment
Mr. Banks contends that his constitutional rights
were also violated by the prosecutor's argument that application of
the mitigating factors would give the defendant special treatment.
The prosecutor stated the following:
It's sad but with your everyday common lifetime
experiences, you know that it is common for some kids to pick on
others, especially in sibling situations. Does it set him apart from
any other defendant who commits murder? Does it make him special?
Does it make him different? Because a mitigating circumstance,
ladies and gentlemen, is one that sets it apart, something that makes
this offense something that deserves this defendant-this defendant
deserved to be treated differently than everybody else, special
Mr. Banks objected to this statement on the ground
that the prosecutor was suggesting that consideration of mitigating
factors constituted special treatment. The trial court responded as
[I]t's not so much that he's going to be given
special treatment. He's going to be treated like anybody else under
the law and the jury is entitled to consider these things. I
understand your objection. I'll simply state that you should-since
you do have your argument yet to come, that you should respond to it
in your argument. That would be a better course.
The prosecutor then continued with her argument by
So whether you've been bullied or picked on, you
didn't hear any proof of torture. You didn't hear any proof that he
had to go a hospital. You didn't hear any proof that it was anything
outside the norm of anybody else's childhood growing up experiences.
So do you set that apart? Is that anything different from what
anybody else has had to endure? Is it anything different than what
any of you have had to endure? Does it justify or excuse or should
it be given less culpability for execution because you had that
lifetime childhood experience?
The prosecutor's argument was not that
consideration of the mitigating circumstances would afford Mr. Banks
special treatment. Rather, the prosecutor was describing mitigating
circumstances as those that render a particular offender less culpable
than the average person. Regardless of how these arguments are
characterized, they fall safely within the domain of legitimate
argument that the jury should afford little or no weight to a
particular mitigating circumstance asserted by Mr. Banks, specifically
that Mr. Banks was picked on and beaten by his brothers. See, e.g.,
State v. Hall, 976 S.W.2d at 170; State v. Brimmer, 876 S.W.2d at 85;
State v. Howell, 868 S.W.2d at 258.
The Prosecutor's Statement that the Wrong
Punishment Would Negate a Guilty Verdict
Mr. Banks also takes issue with the prosecutor's
argument that the wrong punishment would negate a guilty verdict and
insists that the trial court committed reversible error by failing to
grant a mistrial. While he concedes that the trial court gave a
curative instruction, he insists that the instruction did not remove
the taint of the prosecutor's implication that the statutorily
authorized punishments were wrong.
During her closing argument, the prosecutor argued:
Now we're ․ wrapping up what is ․ the penalty phase. And it is
considerably shorter than the first phase or the rest of the trial.
But make no mistake, it is no less important. And in fact, it's more
important because the wrong punishment negates the proper verdict.
And the wrong punishment negates a guilty verdict.
Mr. Banks objected to the assertion that the verdict would be
negated. The trial court responded to Mr. Banks's objection as
I agree․ Whatever the verdict is, whatever sentence the jury
imposes, whichever one of the three options, that will be the proper
verdict because the jury's consideration and ultimate decision is the
proper decision․ It will not negate what they've done thus far. So I
do think that went beyond what is appropriate. Would you like me to
offer a curative instruction?
The prosecutor then sought clarification of how she had erred.
The trial court reiterated its explanation and indicated that it would
provide a curative instruction. The trial court then stated to the
jury the following:
Ladies and gentlemen, let me instruct you that the last comment
made by [the prosecutor] is not to be considered, that whatever your
decision is ultimately will be the right decision. And it will not
in any way negate the verdict you've reached or the decision you've
made thus far.
Mr. Banks offered no further objection and did not request a
Juries are presumed to follow the trial court's instructions. State
v. Young, 196 S.W.3d at 111; State v. Shaw, 37 S.W.3d at 904. The
trial court's curative instruction adequately remedied the potential
prejudice caused by the prosecutor's erroneous argument.
Mr. Banks never requested a mistrial following this comment and did
not include the trial court's failure to grant a mistrial as one of
the grounds of his motion for new trial. Accordingly, he has waived
this issue. We will, nevertheless, review this issue using the plain
The decision of whether to grant or deny a mistrial
rests within the sound discretion of the trial court. State v. Smith,
871 S.W.2d 667, 672 (Tenn.1994). A mistrial should be declared only
upon a showing of manifest necessity. State v. Saylor, 117 S.W.3d
239, 250 (Tenn.2003). Accordingly, a mistrial is an appropriate
remedy when a trial cannot continue or a miscarriage of justice would
result if it did. State v. Robinson, 146 S.W.3d at 494. An
appellate court should not reverse a trial court's decision denying a
request for a mistrial absent a clear showing that the trial court
abused its discretion. State v. Reid, 91 S.W.3d at 279. The burden
of establishing the necessity of a mistrial lies with the party
seeking it. State v. Reid, 164 S.W.3d at 342. We find no error,
much less plain error in the trial court utilizing a curative
instruction instead of declaring a mistrial. The instruction
adequately addressed any concerns regarding the impact on the jury of
the prosecutor's statement.
The Prosecutor's Reference to Facts Not in
In his final challenge to the prosecutor's closing
arguments, Mr. Banks contends that the prosecutor committed reversible
error by stating that Mr. Al-Maily had witnessed the robbery and had
begged for his life. He did not object to these statements at trial,
and he did not cite these statements in his motion for new trial.
Accordingly, he has waived this issue. We will, nevertheless, review
this issue using the plain error analysis.
There is nothing improper in the prosecution's
argument that Mr. Al-Maily witnessed the robbery. The evidence fully
supports this contention. However, there is no evidence that Mr. Al-Maily
begged for his life. The jury was instructed that the arguments of
counsel are not evidence and are to be disregarded if not supported by
the evidence. We presume that the jurors follow their instructions.
State v. Young, 196 S.W.3d at 111; State v. Shaw, 37 S.W.3d at 904.
Reviewed in its context in the prosecution's closing argument, this
comment had no effect on the verdict in this case. We decline to
conclude the prosecutor's statement rises to the level of plain error.
The Sufficiency of the Evidence
Mr. Banks challenges the sufficiency of the
evidence to support his convictions. Tenn. R.App. P. 13(e) provides
that “[f]indings of guilt in criminal actions whether by the trial
court or jury shall be set aside if the evidence is insufficient to
support the findings by the trier of fact of guilt beyond a reasonable
doubt.” When assessing whether there is sufficient evidence to
support a criminal conviction, a jury's verdict of guilt removes the
presumption of innocence replacing it with a presumption of guilt. State
v. Wilson, 211 S.W.3d at 718; State v. Scarborough, 201 S.W.3d 607,
624 (Tenn.2006). Thus, a defendant bears the burden of demonstrating
that the evidence is insufficient to sustain a guilty verdict. State
v. Dotson, 254 S.W.3d 378, 395 (Tenn.2008); State v. Campbell, 245
S.W.3d 331, 335 (Tenn.2008).
When reviewing the evidence in a criminal case,
appellate courts must afford the State the strongest legitimate view
of the evidence as well as give the State the benefit of all
reasonable inferences that may be drawn therefrom. State v. McGouey,
229 S.W.3d 668, 671 (Tenn.2007); State v. Vasques, 221 S.W.3d 514,
521 (Tenn.2007). The responsibility for determining the weight and
credibility to be given witnesses' testimony and the responsibility to
reconcile conflicts in the testimony are entrusted to the triers of
fact. State v. Campbell, 245 S.W.3d at 335; State v. Langford, 994
S.W.2d 126, 127 (Tenn.1999). With this framework firmly in mind, the
ultimate question for an appellate court “is whether, after viewing
the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307,
319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); see also State v. Dotson,
254 S.W.3d at 395; State v. Campbell, 245 S.W.3d at 335; State v.
Berry, 141 S.W.3d at 564.
The Premeditated First Degree Murder Conviction
Mr. Banks argues that the evidence is insufficient
to support his conviction for the premeditated first degree murder of
Mr. Al-Maily. He argues that the State failed to prove that he acted
with premeditation. Instead, Mr. Banks contends that he shot Mr. Al-Maily
in “the heat of passion” and that he was not aware prior to arriving
at Mr. Atilebawi's residence that Mr. Al-Maily would be there. Mr.
Banks also argues that the State failed to present sufficient evidence
to prove that he was the shooter. The State insists that the
evidence is sufficient to prove that Mr. Banks shot Mr. Al-Maily and
that he acted with premeditation. The Court of Criminal Appeals
concluded that the evidence was sufficient to support Mr. Banks
conviction for first degree premeditated murder. We concur with the
determination of the Court of Criminal Appeals.
Mr. Banks was convicted on the first count of the
indictment, a charge of first degree murder for the premeditated
killing of Mr. Al-Maily. Pursuant to Tenn.Code Ann.
§ 39-13-202(a)(1), first degree murder includes the “premeditated and
intentional killing of another.” The Tennessee General Assembly has
defined premeditation for purposes of first degree murder as follows:
“[P]remeditation” is an act done after the exercise
of reflection and judgment. “Premeditation” means that the intent to
kill must have been formed prior to the act itself. It is not
necessary that the purpose to kill pre-exist in the mind of the
accused for any definite period of time. The mental state of the
accused at the time the accused allegedly decided to kill must be
carefully considered in order to determine whether the accused was
sufficiently free from excitement and passion as to be capable of
Tenn.Code Ann. § 39-13-202(d).
“Premeditation may be inferred from the manner and
circumstances of the killing.” Finch v. State, 226 S.W.3d 307, 318 (Tenn.2007).
Tennessee courts have identified a number of factors that tend to
demonstrate a homicide was premeditated. These factors include, but
are not limited to, (1) the use of a deadly weapon to kill an unarmed
victim, (2) the procurement of weapons used to commit a murder, (3)
declarations of intent to kill the victim, (4) preparations for the
concealment of a crime, (5) lack of provocation by the victim, (6)
failure to provide aid or assistance to the victim, and (7) calmness
after the killing. State v. Brooks 249 S.W.3d 323, 329 (Tenn.2008).
Mr. Banks used a deadly weapon, killed an unarmed
victim who gave no provocation, provided no aid or assistance to his
victim, and was calm afterwards. Furthermore, Mr. Al-Maily had fully
cooperated with Mr. Banks during the robbery. Instead of resisting,
Mr. Al-Maily handed over three hundred dollars to Mr. Banks. He also
remained in the bedroom lying facedown on the floor as ordered while
Messrs. Banks and Hilliard stole clothing, audio speakers, and cash
from Mr. Atilebawi's home.
Mr. Banks took the time to search the living room
and bedroom for items to steal and then to load the Jeep with speakers
and clothes. With Mr. Al-Maily lying facedown on the floor, having
fully complied with his directions, Mr. Banks could simply have left
the premises with his ill-gotten gains. Instead, he returned to the
house, walked up to a person whom he considered a friend who was lying
on the floor, and shot him in the back of the head from close range.
Viewing the facts in a light most favorable to the State, a reasonable
jury could have easily have found beyond a reasonable doubt that Mr.
Banks acted with premeditation when he shot Mr. Al-Maily.
We now turn to the question of whether the State
presented sufficient evidence to demonstrate that Mr. Banks shot Mr.
Al-Maily. We conclude that, viewing the facts in the light most
favorable to the State, the testimony of Mr. Atilebawi, the physical
evidence, the fact that Mr. Banks was found driving the stolen Jeep
containing the property stolen from Mr. Atilebawi, and Mr. Banks's
confession that he shot Mr. Al-Maily provide sufficient evidence to
permit a reasonable jury to find beyond a reasonable doubt that Mr.
Banks shot Mr. Al-Maily.
The Murder in the Perpetration of a Robbery
Mr. Banks also contends that the evidence is
insufficient to support his conviction for murder in the perpetration
of a robbery. He argues that any robbery that occurred was a
separate and distinct event from the shooting of Mr. Al-Maily.
Additionally, Mr. Banks argues there was no evidence that he intended
to rob Mr. Al-Maily and that ownership of the money and the red Jeep
that were found in his possession was not conclusively established.
Citing State v. Smith, 24 S.W.3d 274 (Tenn.2000), Mr. Banks also
points out that a conviction cannot be founded solely on a defendant's
confession. The State contends that it presented sufficient evidence
to support the conviction. The Court of Criminal Appeals concluded
that the evidence was sufficient to support a conviction for murder in
the perpetration of a robbery. We agree.
Under Tennessee law, first degree murder includes
“[a] killing of another committed in the perpetration of or attempt to
perpetrate any ․ robbery.” Tenn.Code Ann. § 39-13-202(a)(2).
Robbery, under Tennessee law, “is the intentional or knowing theft of
property from the person of another by violence or putting the person
in fear.” Tenn.Code Ann. § 39-13-401(a). The Tennessee General
Assembly has expressly provided that “[n]o culpable mental state is
required for conviction under subdivision (a)(2) ․ except the intent
to commit the enumerated offenses or acts” in that subdivision. Tenn.Code
Ann. § 39-13-202(b).
It is a long-standing rule of Tennessee law that to
fall within the definition of felony murder, a killing must have been
“done in pursuance of the unlawful act, and not collateral to it․ [In
other words,] [t]he killing must have had an intimate relation and
close connection with the felony ․ and not be separate, distinct, and
independent from it.” State v. Rice, 184 S.W.3d 646, 663 (Tenn.2006)
(quoting Farmer v. State, 201 Tenn. 107, 115-16, 296 S.W.2d 879, 883
(1956)). In applying this requirement, this Court has concluded that
“[t]he killing ‘may precede, coincide with, or follow the felony and
still be considered as occurring ‘in the perpetration of’ the felony
offense, so long as there is a connection in time, place, and
continuity of action.' ” State v. Thacker, 164 S.W.3d at 223 (quoting
State v. Buggs, 995 S.W.2d at 106). The defendant must have the
intent to commit the underlying felony either prior to or concurrent
with the act causing the victim's death. State v. Thacker, 164 S.W.3d
at 223; State v. Buggs, 995 S.W.2d at 107. A defendant's actions
immediately after the killing can provide a basis from which the jury
may reasonably infer that the defendant, either prior to or concurrent
with committing the act that caused the victim's death, had an intent
to commit the underlying felony. State v. Thacker, 164 S.W.3d at
223; State v. Buggs, 995 S.W.2d at 108.
We have long recognized that a conviction cannot be
based solely on a defendant's confession and, therefore, that the
State must present some corroborating evidence to establish the corpus
delicti. State v. Smith, 24 S.W.3d at 281. The “corpus delicti”
refers to the “body of the crime-evidence that a crime was committed
at the place alleged in the indictment.” Van Zandt v. State, 218 Tenn.
187, 202, 402 S.W.2d 130, 136 (1966).32
The threshold for establishing the corpus delicti is “low” and
requires only “slight evidence,” which can be met through reliance
upon circumstantial evidence. State v. Housler, 193 S.W.3d 476,
490-91 (Tenn.2006). Thus, “[a] confession may sustain a conviction
where there is other evidence sufficient to show the commission of the
crime by someone.” State v. Jones, 15 S.W.3d 880, 891 (Tenn.Crim.App.1999)
(quoting Taylor v. State, 479 S.W.2d 659, 661-62 (Tenn.Crim.App.1972)).
After shooting Mr. Atilebawi, Mr. Banks entered Mr.
Atilebawi's house and, along with Mr. Hilliard, searched through Mr.
Atilebawi's living room and bedroom looking for items to steal.
Having just shot Mr. Atilebawi and with the gun still in his
possession, Mr. Banks took three hundred dollars in cash from Mr. Al-Maily.
Messrs. Banks and Hilliard gathered packaged clothing, audio
speakers, and cash and loaded them into the red Jeep. Mr. Banks then
shot Mr. Al-Maily before leaving. Mr. Banks used violence and fear
to rob Messrs. Atilebawi and Al-Maily. Viewing the facts in the
light most favorable to the State, there is sufficient evidence from
which a reasonable jury could have found beyond a reasonable doubt
that there was a connection in time, place, and continuity of action
between the shooting of Mr. Al-Maily and the robbery.
As for ownership of the property, Mr. Atilebawi
testified that Mr. Banks stole his cash, silver key rings, and his red
Jeep. Mr. Banks confessed that he stole the cash from Messrs.
Atilebawi and Al-Maily as well as audio speakers, clothing, and a red
Jeep. He was found in possession of all of the above when arrested by
the police. Viewing the facts in the light most favorable to the
State, this evidence provides a sufficient basis from which a
reasonable juror could conclude beyond a reasonable doubt that the
property was owned by Messrs. Atilebawi and Al-Maily.
As for Mr. Banks's argument that a confession alone
is insufficient evidence upon which to convict a defendant, he is
correct insofar as there must be some slight evidence in addition to a
confession in order to establish the corpus delicti. In this case,
the discovery of Mr. Al-Maily's dead body with a gunshot wound in the
back of his head and no firearm next to him would adequately meet this
standard by providing evidence that a homicide occurred in a manner
other than by accident. The evidence bolstering Mr. Banks's
confession, however, extends significantly beyond the discovery of the
body with a gunshot wound-as does the evidence of his guilt in
general. By way of illustration, Mr. Banks was arrested after the
shootings in a vehicle stolen from Mr. Atilebawi with Mr. Atilebawi's
The Criminal Attempt to Commit First Degree
Mr. Banks asserts that the State presented
insufficient evidence to support his conviction for criminal attempt
to commit first degree murder. He argues that the shooting occurred
following provocation during an argument regarding Mr. Banks having
been cheated out of a large sum of money and the alleged sexual
assault on his former girlfriend. He asserts that the evidence
supports only an intent to cause bodily injury because he left the
scene without “finish[ing] the victim off.” The State argues that
the evidence presented was sufficient. The Court of Criminal Appeals
concluded that a reasonable jury could have found that Mr. Banks acted
with premeditation and intended to kill Mr. Atilebawi. We agree.
The Tennessee General Assembly has defined criminal
attempt as follows:
(a) A person commits criminal attempt who, acting
with the kind of culpability otherwise required for the offense:
(1) Intentionally engages in action or causes a
result that would constitute an offense, if the circumstances
surrounding the conduct were as the person believes them to be;
(2) Acts with intent to cause a result that is an
element of the offense, and believes the conduct will cause the result
without further conduct on the person's part; or
(3) Acts with intent to complete a course of action
or cause a result that would constitute the offense, under the
circumstances surrounding the conduct as the person believes them to
be, and the conduct constitutes a substantial step toward the
commission of the offense.
(b) Conduct does not constitute a substantial step
under subdivision (a)(3), unless the person's entire course of action
is corroborative of the intent to commit the offense.
(c) It is no defense to prosecution for criminal
attempt that the offense attempted was actually committed.
Tenn.Code Ann. § 39-12-101. As noted above, first
degree murder includes the “premeditated and intentional killing of
another,” Tenn.Code Ann. § 39-13-202(a)(1), and premeditation for
purposes of first degree murder has been defined as follows:
“[P]remeditation” is an act done after the exercise
of reflection and judgment. “Premeditation” means that the intent to
kill must have been formed prior to the act itself. It is not
necessary that the purpose to kill pre-exist in the mind of the
accused for any definite period of time. The mental state of the
accused at the time the accused allegedly decided to kill must be
carefully considered in order to determine whether the accused was
sufficiently free from excitement and passion as to be capable of
Tenn.Code Ann. § 39-13-202(d).
The evidence establishes that several days before
the murder Mr. Banks began quite deliberately plotting his revenge
upon Mr. Atilebawi. Because the firearm that he kept in his Ford
Explorer was not working, Mr. Banks obtained another firearm from Mr.
Hilliard. Messrs. Hilliard and Banks discussed disposing of Mr.
Atilebawi's dead body in the Wolf River. Mr. Banks shot Mr.
Atilebawi four times, including twice in the head. He tried to
conceal the body, but Mr. Atilebawi was too heavy to move.
Mr. Banks offers no legal support for his argument
that his decision to leave Mr. Atilebawi on the driveway, covered in
blood and still bleeding from four different gunshot wounds, including
two shots to his head, negates his intent to kill Mr. Atilebawi.
Viewing the facts in a light most favorable to the State, there is
sufficient evidence from which a reasonable jury could find beyond a
reasonable doubt that Mr. Banks acted with premeditation in shooting
The Especially Aggravated Robbery Conviction
Finally, Mr. Banks contends that the State
presented insufficient evidence to prove that he committed an
especially aggravated robbery. Specifically, he takes issue with the
sufficiency of the evidence that the Jeep was stolen or that the
shooting of Mr. Atilebawi was related to robbery. Mr. Banks asserts
that the robbery and the shooting were not connected. The State
responds that the record contains ample evidence to support Mr.
Banks's conviction for the especially aggravated robbery of Mr.
Atilebawi. The Court of Criminal Appeals concluded that the evidence
presented was sufficient for a reasonable jury to conclude that the
elements of especially aggravated robbery had been proven beyond a
reasonable doubt. We agree.
Robbery “is the intentional or knowing theft of
property from the person of another by violence or putting the person
in fear.” Tenn.Code Ann. § 39-13-401(a). Especially aggravated
robbery is a robbery that is “(1) [a]ccomplished with a deadly weapon;
and (2)[w]here the victim suffers serious bodily injury.” Tenn.Code
Ann. § 39-13-403(a).
With regard to evidence of the Jeep belonging to Mr.
Atilebawi, Mr. Atilebawi testified that Mr. Banks stole his Jeep. Mr.
Banks admitted in both of his confessions to stealing Mr. Atilebawi's
Jeep, and a neighbor of Mr. Banks testified that she had never seen
him in a red Jeep until the morning after the shootings.
Mr. Banks came to Mr. Atilebawi's house with a
loaded semi-automatic pistol. He shot Mr. Atilebawi with that pistol
four times. As a result, part of Mr. Atilebawi's brain had to be
removed, and he spent a month in the hospital. Mr. Atilebawi
suffered permanent cognitive impairments. This shooting of Mr.
Atilebawi was closely connected in time, place, and continuity of
action with the robbery. Viewing the facts in the light most
favorable to the State, a reasonable jury could find beyond a
reasonable doubt that Mr. Banks committed especially aggravated
The Trial Court's Refusal to Permit Mr. Banks to
Call Officer Mike Bartlett as a Witness During the Penalty Phase
Mr. Banks takes issue with the trial court's
refusal to allow him to call one of its own court officers to testify
during the penalty phase of the trial regarding his good conduct as a
prisoner. Even though he concedes that he did not include this
perceived error in his motion for new trial or raise it before the
Court of Criminal Appeals, Mr. Banks asserts that the denial of his
request to call the court officer constituted plain error because it
infringed on his right to call witnesses under the Sixth Amendment to
the United States Constitution and violated his constitutional due
process of law protections. We have determined that the trial court
did not commit plain error by denying Mr. Banks's request to call one
of its court officers to testify about Mr. Banks's good conduct.
Before the presentation of evidence in the penalty
phase of the trial began, the trial court announced that Officer Mike
Bartlett, one of the four deputies assigned to safeguard and attend
the jury while it was sequestered, had reported to him that the
defense had asked him to testify as a mitigation witness. The trial
court stated on the record that
Absent extraordinary circumstances, I'm not going
to allow that to happen. I don't think it's appropriate.
I think for bailiffs who have been sworn and
charged with the responsibility of guarding the jurors and
establishing a rapport with them all week long, to then be called to
testify for either side is inappropriate. I think there are many
other jailers and law enforcement personnel that have had contact with
this defendant over the past two and a half years and over the past
week that could testify to the same thing that Officer Bartlett would
be available to testify on. And it's almost a betrayal of the trust
between the deputy and the jurors to then start calling those deputies
to the stand to testify.
․ It's just not appropriate. And so if there were
some extraordinary circumstance, if some phenomenal event occurred,
then that might be different. But if it's just to generally testify
to the good conduct of the defendant as he came and went from the
courtroom each day, no, that's not appropriate. And it would be
cumulative and for all those reasons.
Mr. Banks's lawyer thanked the court “for putting
that on the record” but did not object or take exception to the trial
court's decision. During the penalty phase, Mr. Banks called
multiple witnesses who addressed his conduct while in jail pending
trial including Officer Michael Conner, Officer Charlene Compton,
Officer Wayman Thomas, Officer Latosha Nadia, and Commander Roy L.
Rogers. Because Mr. Banks did not make an offer of proof regarding
what Officer Bartlett's testimony would have been, the record contains
no indication that Officer Bartlett had any additional testimony that
would be anything more than cumulative to that of the other witnesses.
The trial court's decision not to allow the bailiff
charged with safeguarding the jury to testify during the sentencing
phase of the trial was entirely correct. In parallel circumstances
this Court has previously disapproved of the practice of an officer
who has testified in a criminal case having charge of the jury. Ellis
v. State, 218 Tenn. 297, 306, 403 S.W.2d 293, 297 (1966). We find no
error, plain or otherwise, in the trial court's decision to exclude
Officer Bartlett as a penalty phase witness.
The Sentences for Attempted First Degree Murder
and Especially Aggravated Robbery
Mr. Banks challenges his consecutive twenty-five
year sentences for attempted first degree murder and especially
aggravated robbery on three grounds. First, he asserts that these
sentences violate Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531,
159 L.Ed.2d 403 (2004) and that he was entitled to a presumptive
sentence in the absence of a finding of enhancement factors by the
jury. Second, he asserts that each of these sentences was excessive.
Third, he asserts that the trial court erred by ordering these
sentences to be served consecutively. The Court of Criminal Appeals
found each of these claims to be without merit. We agree.
In Blakely v. Washington, the United States Supreme
Court held that the Sixth Amendment required sentences in criminal
cases to be based on the facts either admitted by the defendant or
found by the jury. Blakely v. Washington, 542 U.S. at 303-04.
Therefore, the Court held that trial courts could not impose a
sentence higher than the statutory maximum sentence if their decision
was based on facts that were neither admitted by the defendant nor
found by the jury. Blakely v. Washington, 542 U.S. at 304, 124 S.Ct.
2531. However, in the remedial portion of its decision in United
States v. Booker, 543 U.S. 220, 245-68, 125 S.Ct. 738, 160 L.Ed.2d 621
(2005), the United States concluded that judicial fact-finding in
sentencing was permissible so long as sentencing guidelines were
advisory rather than mandatory.33
As they existed prior to 2005, Tennessee criminal
sentencing statutes established a sentencing range and a “presumptive
sentence” for each class of felonies other than capital murder.34
Under the sentencing procedures required by these statutes, a trial
court could not increase a defendant's sentence above the presumptive
sentence unless it found that enhancement factors existed. If the
trial court determined that enhancement factors existed, it then had
the authority to increase a defendant's sentence up to the maximum
sentence provided for that range.35
The decision in Blakely v. Washington placed a
constitutional cloud over the power of trial courts in Tennessee to
sentence defendants beyond the statutory presumptive sentence based on
facts not reflected in the jury's verdict. Accordingly, in 2005,36
the Tennessee General Assembly amended the sentencing statutes to make
the statutory sentencing guidelines advisory and to remove the
presumptive sentences for each class of felonies other than capital
murder. See Tenn.Code Ann. § 40-35-210(c) (2006); State v. Carter,
254 S.W.3d at 343. The removal of the presumptive sentences and
rendering the guidelines advisory cured the Sixth Amendment defect
noted in Blakely v. Washington using the United States v. Booker
remedy and enabled Tennessee's trial courts to sentence a defendant to
any sentence within the applicable range as long as the length of the
sentence is “consistent with the purposes and principles of the
sentencing statutes.” See Tenn.Code Ann. § 40-35-210(d).37
Mr. Banks knowingly exercised his right to be
sentenced under the sentencing laws as amended in 2005.38
As a result of this decision, he did not have the right to a
Accordingly, Mr. Banks's objections to his sentences for attempted
first degree murder and especially aggravated robbery based on Blakely
v. Washington and his purported right to be sentenced at the
presumptive sentence are without merit.
Mr. Banks also takes issue with the length of his
sentences for attempted first degree murder and especially aggravated
robbery. He asserts (1) that these sentences are excessive, (2) that
the trial court relied on enhancement factors that were not supported
by the evidence, (3) that the trial court “erred in his treatment of
the mitigating factors,” and (4) that the trial court violated Blakely
v. Washington by considering “enhancement factors [that] were not
determined by a jury.” The Court of Criminal Appeals found that the
length of these sentences was not excessive. We agree.
Mr. Banks has a statutory right to take issue on
appeal with the length of his sentences on the ground that they are
excessive. Tenn.Code Ann. § 40-35-401(b)(2) (2006). When reviewing
a sentence, an appellate court must review the record de novo and must
presume that the determinations made by the court from which the
appeal is taken-in this case the Court of Criminal Appeals-are correct.
Tenn.Code Ann. § 40-35-401(d). We have interpreted this statutory
standard of review to mean that an appellate court is “bound by a
trial court's decision as to the length of the sentence imposed so
long as it is imposed in a manner consistent with the purposes and
principles set out in sections -102 and -103 of the Sentencing Act.”
State v. Carter, 254 S.W.3d at 346. Mere disagreement with how the
trial court weighed enhancing and mitigating factors is not an
adequate basis for reversing a sentence. State v. Carter, 254 S.W.3d
The twenty-five year sentences imposed on Mr. Banks
by the trial court and affirmed by the Court of Criminal Appeals are
the maximum sentences for convictions for attempted first degree
murder and especially aggravated robbery. As the Court of Criminal
Appeals noted, the trial court's sentencing decision with regard to Mr.
Banks's convictions for attempted first degree murder and especially
aggravated robbery were based on the following six enhancement factors:
(1) Mr. Banks had a previous history of criminal convictions or
criminal behavior in addition to those necessary to establish the
(2) Mr. Banks was the leader in the commission of the offense,41
(3) the personal injuries inflicted upon and the amount of damage to
property sustained by or taken from Mr. Atilebawi were particularly
(4) Mr. Banks failed to comply with the conditions of a sentence
involving release into the community,43
(5) the felony was committed while Mr. Banks was released on probation,44
and (6) Mr. Banks abused a position of private trust.45
State v. Banks, 2007 WL 1966039, at *45-46. The trial court also
considered Mr. Banks's apparent lack of remorse and his dangerousness.
Before the Court of Criminal Appeals, Mr. Banks
took issue with the trial court's reliance on the three enhancement
factors in Tenn.Code Ann. § 40-35-114(2), (6), (14). He also
asserted that the trial court had erred by disregarding all his
mitigating factors solely because of his lack of remorse. The State
conceded that the evidence did not support the trial court's reliance
on the enhancement factors in Tenn.Code Ann. § 40-35-114(6), (14) 46
but insisted that the evidence fully supported the trial court's
reliance on the enhancement factor in Tenn.Code Ann. § 40-35-114(2)
and that the trial court had not improperly disregarded Mr. Banks's
The trial court focused its analysis on the nature
and characteristics of Mr. Banks's criminal conduct in this case, the
weight of the evidence supporting the enhancement factors, and the
relative lack of weight of Mr. Banks's mitigation evidence. The
trial court considered all of the criteria set out in Tenn.Code Ann.
§ 40-35-210(b) and then imposed a sentence within the applicable range.
The trial court explained its reasons for imposing the sentences,
and most of the trial court's relevant findings are adequately
supported by the record. See State v. Carter, 254 S.W.3d at 346.
The trial court's sentencing discretion was
broadened when the Tennessee General Assembly enacted the 2005
amendments to the sentencing statutes. State v. Carter, 254 S.W.3d at
345. We have conducted a detailed, de novo review of the record with
regard to the twenty-five year sentences Mr. Banks received for
attempted first degree murder and especially aggravated robbery, and
we have determined that the evidence supports the trial court's
finding of the enhancement factors in Tenn.Code Ann. § 40-35-114(1),
(2), (8), and (13)(c). Accordingly, despite the trial court's
reliance on two inapplicable enhancement factors, we, like the Court
of Criminal Appeals, have concluded that the trial court considered
and weighed all the matters that Tenn.Code Ann. § 40-35-210 required
it to consider and that the four remaining enhancement factors more
than adequately support the trial court's discretionary decision to
impose twenty-five year sentences for these two crimes.
In his final challenge to his non-capital sentences,
Mr. Banks argues that the trial court erred by ordering these
sentences to be served consecutively. Specifically, he insists that
his criminal history after he became eighteen years old was not
extensive enough to influence whether he should serve his non-capital
sentences concurrently or consecutively.
The Tennessee General Assembly has provided the
courts with the factors to consider when determining whether sentences
should be served concurrently or consecutively. Tenn.Code Ann.
§ 40-35-115(b) (2006). A trial court may order multiple sentences to
be served consecutively upon finding that any one of the seven factors
contained in Tenn.Code Ann. § 40-35-115(b) apply. However, if the
trial court bases its decision to require sentences to be served
consecutively on its finding that the defendant is a dangerous
offender, it must make additional findings regarding the severity of
the crimes committed and the necessity to protect the public from
further criminal acts by the defendant. State v. Allen, 259 S.W.3d
671, 689 (Tenn.2008); State v. Robinson, 146 S.W.3d at 524 (appendix);
State v. Lane, 3 S.W.3d 456, 460-61 (Tenn.1999).
Although it is only necessary for the trial court
to find one of the factors in Tenn.Code Ann. § 40-35-115(b) in order
to require Mr. Banks to serve his non-capital sentences consecutively,
the trial court found that three factors were applicable. In
accordance with Tenn.Code Ann. § 40-35-115(b)(2), the trial court
found that Mr. Banks's record of criminal activity was extensive,
particularly for someone so young. The trial court also found, in
accordance with Tenn.Code Ann. § 40-35-115(b)(4), that Mr. Banks was a
dangerous offender. Finally, the trial court had already determined
that Mr. Banks had committed his crimes while on probation. See
Tenn.Code Ann. § 40-35-115(b)(6).
Mr. Banks argues that the trial court should not
have considered his juvenile record and that he did not have a
particularly extensive criminal record after his eighteenth birthday.
Neither the law nor the facts support this argument. When
determining whether sentences should run consecutively or concurrently,
trial courts are not limited to considering the defendant's criminal
activity or conduct that occurred after the defendant's eighteenth
birthday. State v. Stockton, 733 S.W.2d 111, 112 (Tenn.Crim.App.1986);
see also Tenn.Code Ann. § 37-1-133(b) (2005) (authorizing the use of
juvenile records in the preparation of pre-sentence reports).
Mr. Banks's presentence report and other evidence
in this case provides ample evidence of his extensive criminal record
and of his dangerousness. He has prior convictions on two counts of
assault, one of which involved bodily harm. He has been convicted of
aggravated burglary. His criminal conduct in this case demonstrates
a lack of regard for human life and a lack of hesitation to resort to
violence to commit crimes that create a high risk to human life.
Based on our de novo review of the record, we have concluded, like the
Court of Criminal Appeals, that the trial court, in accordance with
Tenn.Code Ann. § 40-35-115, did not err by ordering Mr. Banks to serve
his sentences for attempted first degree murder and especially
aggravated robbery consecutively.
The Sufficiency of the Evidence Regarding the
Statutory Aggravating Circumstances Required by Tenn.Code Ann.
§ 39-13-204(i) (2006)
The death penalty cannot be imposed unless the jury
determines unanimously that the State has proved beyond a reasonable
doubt one or more of the aggravating circumstances in Tenn.Code Ann.
§ 39-13-204(i) (2006). In Mr. Banks's case, the jury determined that
the State had proved the existence of two aggravating circumstances-Tenn.
Code Ann. § 39-13-204(i)(6) 47
and Tenn.Code Ann. § 39-13-204(i)(7).48
In the Court of Criminal Appeals, Mr. Banks
challenged the adequacy of the evidence with regard to both of these
aggravating circumstances. The Court of Criminal Appeals concluded
that the evidence supported the jury's finding with regard to the
aggravating circumstance in Tenn.Code Ann. § 39-13-204(i)(7) but not
the aggravating circumstance in Tenn.Code Ann. § 39-13-204(i)(6).
However, the Court of Criminal Appeals also determined that the trial
court's error in submitting the aggravating circumstance in Tenn.Code
Ann. § 39-13-204(i)(6) to the jury was harmless beyond a reasonable
In this Court, Mr. Banks asserts that the evidence
is insufficient to support the finding of an aggravating circumstance
under either Tenn.Code Ann. § 39-13-204(i)(6) or Tenn.Code Ann.
§ 39-13-204(i)(7) and that the trial court's error with regard to the
aggravating circumstance in Tenn.Code Ann. § 39-13-204(i)(6) was not
harmless. The State argues that the evidence supports both
aggravating circumstances and, in the alternative, that the error, if
any, with regard to the aggravating circumstance in Tenn.Code Ann.
§ 39-13-204(i)(6) was harmless. We have determined that the evidence
fully supports the jury's finding with regard to both aggravating
circumstances. Therefore, we reverse the Court of Criminal Appeals's
decision that the evidence does not support the finding of an
aggravating circumstance under Tenn.Code Ann. § 39-13-204(i)(6).
In addressing whether the evidence is sufficient to
support a jury's finding of the existence of an aggravating
circumstance, our standard of review is framed by taking the facts in
a light most favorable to the State and by considering whether a
rational trier of fact could have found the existence of an
aggravating circumstance beyond a reasonable doubt. State v. Reid,
164 S.W.3d at 314; Terry v. State, 46 S.W.3d at 160-61. Even if a
defendant has not expressly challenged the sufficiency of an
aggravating circumstance found by the jury, it is, nevertheless, the
duty of this Court to determine whether “[t]he evidence supports the
jury's finding of statutory aggravating circumstance or circumstances.”
Tenn.Code Ann. § 39-13-206(c)(1)(B); see also State v. Reid, 164 S.W.3d
The Tenn.Code Ann. § 39-13-204(i)(6) Aggravating Circumstance
The jury found unanimously that the State had
proven beyond a reasonable doubt that “[t]he murder was committed for
the purpose of avoiding, interfering with, or preventing a lawful
arrest or prosecution of the defendant or another.” Tenn.Code Ann.
§ 39-13-204(i)(6). This aggravating circumstance arises where one of
the defendant's motivations for killing the victim was to avoid arrest
or prosecution. State v. Ivy, 188 S.W.3d 132, 149 (Tenn.2006).
While this aggravating circumstance is not limited to killing of
eyewitnesses or those who could identify the defendant, State v. Reid,
164 S.W.3d at 315, the killing of a witness to a crime because that
person witnessed a crime may, depending on the circumstances,
constitute a killing for purpose of avoiding arrest or prosecution. State
v. Reid, 213 S.W.3d 792, 818 (Tenn.2006); State v. Rollins, 188 S.W.3d
553, 572 (Tenn.2006); State v. Davis, 141 S.W.3d 600, 618-19 (Tenn.2004).
The Court of Criminal Appeals concluded that the
evidence was insufficient to support the Tenn.Code Ann.
§ 39-13-204(i)(6) aggravating circumstance. It reasoned as follows:
The proof establishes that the victim, Kadhem Al-Maily,
observed or overheard the shooting and robbery of his friend, Hussain
Atilebawi. After review, it is apparent that the proof, relevant to
this issue, fails to support application of the (i)(6) factor. We
are unable to conclude that the Appellant's course of action, before
and after the homicide of the victim, is consistent with or
corroborative of the motive that he killed the victim to prevent his
arrest. Indeed, as asserted by the Appellant, after the perpetration
of the crime, he did not flee the area, but, rather, he remained in
the community. Moreover, the Appellant made no effort to move his
victims or to conceal evidence of the crimes. The Appellant argues
that, to apply the (i)(6) factor in this case, without more proof,
would make the factor inherent in any murder involving the
perpetration of a robbery. We agree. The only other possible
theory supporting the existence of the (i)(6) aggravating circumstance
is the argument that, because the Appellant knew the victim, it could
be inferred that the victim might recognize him. The evidence,
however, does not support this inference beyond a reasonable doubt.
Indeed, the evidence shows that the Appellant left a witness who could
identify him, Atilebawi, and that he knew when he left that Atilebawi
was alive. Accordingly, we conclude that the jury's finding of the
(i)(6) aggravating factor must be vacated.
State v. Banks, 2007 WL 1966039, at *53. We
respectfully disagree with this finding. Viewing the evidence in the
light most favorable to the State, we have concluded that the evidence
shows beyond a reasonable doubt that Mr. Banks killed Mr. Al-Maily to
eliminate him as a witness to his crimes.
The Court of Criminal Appeals's finding that Mr.
Banks “made no effort to move his victims” is not supported by the
record. Mr. Banks confessed to attempting to move Mr. Atilebawi's
body. He stated in his first confession that he “was scared and
didn't want nobody to see [Mr. Atilebawi].” Mr. Banks also told the
police that he had tried to conceal Mr. Atilebawi's body but that Mr.
Atilebawi was too heavy to move.49
In addition to his admission that he tried to conceal Mr. Atilebawi's
body after shooting him, Mr. Banks also admitted that he and Mr.
Hilliard had actually discussed throwing Mr. Atilebawi's body in the
Wolf River to conceal their crime. This evidence is more than
sufficient to enable a reasonable juror to conclude that Mr. Banks was
planning the ways that he would conceal his crimes several days before
he committed them and that he was intent on concealing his crimes
after he arrived at Mr. Atilebawi's house.
As evidence that he was not attempting to conceal
his crimes when he killed Mr. Atilebawi, Mr. Banks points to the fact
that Mr. Atilebawi was still alive when he left the scene. However,
the facts of this case would also enable a reasonable juror to
conclude that Mr. Banks believed that Mr. Atilebawi was either dead or
dying when he left the scene. He had shot Mr. Atilebawi four times,
twice in the head. Mr. Atilebawi was lying bleeding in his driveway.
Mr. Atilebawi was consciously trying to avoid moving or attracting
Mr. Banks's attention because he was afraid that Mr. Banks would shoot
him again. Mr. Banks offered no aid or assistance to Mr. Atilebawi.
On these facts, a reasonable juror could easily conclude that Mr.
Banks left Mr. Atilebawi for dead.
Mr. Banks also points to the fact that he stayed in
the neighborhood of the crime and did not attempt to flee as further
evidence that he was not attempting to conceal what he and Mr.
Hilliard had done the night before. If anything, this evidence would
prompt a reasonable juror to conclude that Mr. Banks did not attempt
to flee because he believed that he had killed the only two
eyewitnesses to the crime. This conclusion is buttressed by Mr.
Banks's own confession. When asked to explain his early morning
spending spree after leaving Mr. Atilebawi's house, Mr. Banks's
answers reflected his belief that he was under no danger of being
arrested because he assumed that Messrs. Atilebawi and Al-Maily were
dead or would die before they had a chance to talk with the police.
When asked why he purchased new rims and tires for the stolen red
Jeep, Mr. Banks replied that he purchased these items because he
planned to keep the Jeep. He also volunteered that he had picked up a
job application at Walgreens.
Most importantly, however, the circumstances
surrounding Mr. Al-Maily's death provide persuasive evidence regarding
Mr. Banks's motivation for shooting him. From Mr. Banks's point of
view, the only remaining witness who could identify him was his friend,
Mr. Al-Maily. Mr. Al-Maily had handed over his money without
resistance, had not interfered in any way with Messrs. Banks and
Hilliard, and had complied with the order to lie face down on the
floor of Mr. Atilebawi's bedroom. After Messrs. Banks and Hilliard
loaded the stolen property in the Jeep, they could have simply left
the scene. Instead, Mr. Banks walked back into Mr. Atilebawi's house,
went into Mr. Atilebawi's bedroom, and calmly and deliberately shot Mr.
Al-Maily in the head. Mr. Banks had no personal animus toward Mr.
Al-Maily. The manner in which he shot Mr. Al-Maily would prompt any
reasonable juror to conclude that Mr. Banks shot his friend not to
complete the crimes but to cover them up.
Simply stated, viewing the facts in the light most
favorable to the State, a reasonable juror could have found beyond a
reasonable doubt that Mr. Banks killed Mr. Al-Maily to eliminate a
witness to his crimes. Accordingly, we reverse the Court of Criminal
Appeals's conclusion that the Tenn.Code Ann. § 39-13-204(i)(6)
aggravating circumstance was not sufficiently supported by the
evidence. Furthermore, because the aggravating circumstance was
sufficiently supported by the evidence, we pretermit any discussion of
whether an error in charging this circumstance would have been
The Tenn.Code Ann. § 39-13-204(i)(7) Aggravating
Mr. Banks challenges the finding of the Tenn.Code
Ann. § 39-13-204(i)(7) aggravating circumstance on three fronts.
First, he argues that the State presented insufficient evidence to
support the application of this aggravating circumstance. Second, he
claims that it is impossible to determine whether this aggravating
circumstance applied to his premeditated murder conviction or his
felony murder conviction. Third, he insists that applying the
aggravating factor to his felony murder conviction violates State v.
Middlebrooks, 840 S.W.2d 317 (Tenn.1992) because the factor is already
inherent in any conviction for murder in the perpetration of a robbery.
The Court of Criminal Appeals found Mr. Banks's challenge to the
Tenn.Code Ann. § 39-13-204(i)(7) aggravating factor to be without
merit. State v. Banks, 2007 WL 1966039, at *55. We agree.
We need not tarry long with Mr. Banks's claim that
the record contains insufficient evidence to support the invocation of
the Tenn.Code Ann. § 39-13-204(i)(7) aggravating factor. The jury
concluded unanimously that the State had proved beyond a reasonable
doubt that “[t]he murder was knowingly committed, solicited, directed,
or aided by the defendant, while the defendant had a substantial role
in committing or attempting to commit, or was fleeing after having a
substantial role in committing or attempting to commit, any robbery.”
For the reasons discussed in affirming Mr. Banks's conviction for
first degree murder in the perpetration of a robbery and premeditated
murder, we find that this aggravating circumstance is sufficiently
supported by the evidence.
Mr. Banks's arguments regarding the ambiguity of
the application of the Tenn.Code Ann. § 39-13-204(i)(7) aggravating
circumstance and the violation of State v. Middlebrooks are likewise
without merit. The jurors addressed one murder in this case-the
killing of Mr. Al-Maily by Mr. Banks. The jurors were asked to
determine whether the State proved its two asserted aggravating
circumstances beyond a reasonable doubt. They unanimously found that
the State had proved both the Tenn.Code Ann. § 39-13-204(i)(6)
aggravating circumstance and the Tenn.Code Ann. § 39-13-204(i)(7)
aggravating circumstance beyond a reasonable doubt. It is neither
rational nor conceivable that the jurors concluded that these facts
were true as to one of the counts of Mr. Banks murdering Mr. Al-Maily
but not the other. Mr. Banks either killed Mr. Al-Maily to avoid
arrest or prosecution or he did not. He either knowingly killed Mr.
Al-Maily in the perpetration of a robbery or he did not.
In 1992, this Court held that Tennessee's broad
definition of felony murder and the duplicative language of the felony
murder aggravating circumstance required it to hold that Tennessee's
first degree murder statute, as it existed at that time, did not
sufficiently narrow the class of persons eligible for the death
penalty to comply with the Eighth Amendment to the United States
Constitution. State v. Middlebrooks, 840 S.W.2d at 346. The
Tennessee General Assembly responded to this decision in 1995 by
amending the aggravating circumstance in Tenn.Code Ann.
§ 39-13-204(i)(7) to require that the murder “was knowingly committed,
solicited, directed, or aided by the defendant, while the defendant
had a substantial role in committing or attempting to commit” one of
the enumerated felonies.50
This amendment narrowed the class of offenders to whom the death
penalty could be applied sufficiently so as to leave no State v.
Middlebrooks problem even in cases where Tenn.Code Ann.
§ 39-13-204(i)(7) was the only aggravating circumstance established
and the conviction was for felony murder. State v. Reid, 91 S.W.3d at
306 n. 13 (appendix).51
The Constitutionality of Tennessee's Death
Penalty Statutory Scheme
Mr. Banks also makes nine other general arguments
that Tennessee's death penalty statutes violate various provisions of
the Constitution of the United States 52
and the Constitution of Tennessee.53
We will address each of these arguments in turn.
The Vagueness and Overbreadth of the Tenn.Code
Ann. § 39-13-204(i)(6) Aggravating Circumstance
Mr. Banks insists that the Tenn.Code Ann.
§ 39-13-204(i)(6) aggravating circumstance is vague or overbroad.
This Court has consistently recognized that this aggravating
circumstance requires that a motive for the killing must have been
avoiding, interfering with, or preventing an arrest or prosecution.
See, e.g., State v. Ivy, 188 S.W.3d at 149. There is nothing vague
or overbroad about this aggravating circumstance.
The Duplication Between the Aggravating
Circumstances in Tenn.Code Ann. § 39-13-204(i)(6) and Tenn.Code Ann.
Mr. Banks argues that the aggravating circumstances
in Tenn.Code Ann. § 39-13-204(i)(6) and Tenn.Code Ann.
§ 39-13-204(i)(7) are unconstitutional because they duplicate each
other. These aggravating circumstances have the potential to overlap,
particularly when a defendant kills a person in order to eliminate a
witness to one of the enumerated felonies set forth in Tenn.Code Ann.
§ 39-13-204(i)(7) where there exists connection in time, place, and
continuity of action between the felony and the murder.
Notwithstanding the fact that these two aggravating
circumstances could conceivably apply to the same event, it does not
necessarily follow that they are duplicates. It is not difficult to
conceive of numerous factual circumstances in which the defendant
could commit a murder that would fall within one aggravating
circumstance but not the other. For example, a defendant who murders
a witness shortly before trial or murders a witness to a crime not
included among those enumerated in Tenn.Code Ann. § 39-13-204(i)(7)
would fall under the Tenn.Code Ann. § 39-13-204(i)(6) aggravating
circumstance but not the Tenn.Code Ann. § 39-13-204(i)(7) aggravating
circumstance. Similarly, a defendant who kills a person whom he or
she was robbing either because the victim refused to hand-over cash or
because of some personal animus would fall under the Tenn.Code Ann.
§ 39-13-204(i)(7) aggravating circumstance but not the Tenn.Code Ann.
§ 39-13-204(i)(6) aggravating circumstance. Even assuming, for the
sake of argument, that the aggravating circumstances are duplicative,
Mr. Banks has failed to demonstrate or explain why this duplication
would undermine their constitutionality.
The Vagueness and Overbreadth of the Tenn.Code
Ann. § 39-13-204(i)(5) Aggravating Circumstance
Mr. Banks also insists that the Tenn.Code Ann.
§ 39-13-204(i)(5) aggravating circumstance is unconstitutionally vague
and overbroad. However, the State never attempted to invoke this
aggravating circumstance in this case, and the jury certainly never
addressed it. Accordingly, Mr. Banks has not demonstrated that he has
standing to challenge this aggravating circumstance.
Tennessee's Aggravating Circumstances'
Compliance with the Narrowing Requirements of the Eighth Amendment
In addition to the death penalty not being
applicable to any crime that does not result in death, Tennessee
narrowly circumscribes the homicide offenses to which the death
penalty is applicable. A conviction for vehicular homicide,
aggravated vehicular homicide, assisted suicide, reckless homicide,
criminally negligent homicide, voluntary manslaughter, or second
degree murder does not render a defendant death penalty eligible.
Even persons convicted of first degree murder cannot become death
penalty eligible until a jury finds unanimously that the State had
proved beyond a reasonable doubt the existence of one of the fifteen
aggravating circumstances enumerated in Tenn.Code Ann. § 39-13-204(i).
Mr. Banks argues, despite his concession that he
has no evidence to support his argument, that most homicides that
occur in Tennessee fall within the aggravating circumstances in
Tenn.Code Ann. § 39-13-204(i)(5), (6), & (7). He also argues that
the concentration of capital cases in three aggravating factors proves
that Tennessee's death penalty statutes fail to meaningfully narrow
the class of defendants who are death penalty eligible as required by
the Eighth Amendment to the United States Constitution.
The United States Supreme Court has held that “an
aggravating circumstance must genuinely narrow the class of persons
eligible for the death penalty and must reasonably justify the
imposition of a more severe sentence on the defendant compared to
others found guilty of murder.” Zant v. Stephens, 462 U.S. 862, 877,
103 S.Ct. 2733, 77 L.Ed.2d 235 (1983). In addition to providing a
public declaration of the state's policies regarding the offenses
deemed to warrant the use of the death penalty, legislatively created
guidelines can also serve to channel the discretion of jurors in
determining whether the death penalty is appropriate in a particular
case. Zant v. Stephens, 462 U.S. at 876-78, 103 S.Ct. 2733. Thus,
they prevent the wanton and freakish imposition of the death penalty.
Zant v. Stephens, 462 U.S. at 876, 103 S.Ct. 2733.
Through its statutory definition of first degree
murder and its statutory enumeration of aggravating circumstances, the
Tennessee General Assembly has narrowed the class of defendants to
whom the death penalty may be applied. We have repeatedly found that
these aggravating circumstances meet the constitutional requirements
of narrowing the class of death penalty eligible persons and
channeling juror discretion. See, e.g., State v. Bane, 57 S.W.3d at
426-27; Terry v. State, 46 S.W.3d at 161-62; State v. Keen, 926 S.W.2d
at 742. Mr. Banks's argument has not persuaded us that this
determination is in error.
Prosecutorial Discretion to Seek the Death
Mr. Banks asserts that Tennessee's death penalty
statutes are unconstitutional because they confer unlimited discretion
upon Tennessee's district attorneys general to decide whether to seek
the death penalty. He argues that the different values, motivations,
and influences of these prosecutors, as well as an absence of clear
guidelines to direct their decision-making process, renders
Tennessee's death penalty statutes unconstitutionally arbitrary and
While Tennessee's district attorneys general have
been entrusted with broad discretion in making charging decisions, it
would be inaccurate to characterize their discretion as entirely
unfettered. The Tennessee General Assembly has defined the elements
of the offense of first degree murder and has provided that it is the
only offense for which the death penalty may be sought. In addition,
the General Assembly has prescribed fifteen aggravating circumstances-at
least one of which must be established beyond a reasonable doubt-before
the death penalty can be considered. When deciding whether to pursue
the death penalty, a district attorney general must take these
statutory requirements into account. In addition to these statutory
requirements, a district attorney general may not pursue the death
penalty without probable cause to believe that the defendant committed
the offense. The district attorney general must also make sure that
all charging decisions fully comply with the Equal Protection Clause
of the Fourteenth Amendment. United States v. Armstrong, 517 U.S.
456, 464-65, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996).
Tennessee's district attorneys general are elected
by the voters of their districts. Tenn. Const. art. VI, § 5; Tenn.Code
Ann. § 8-7-102 (2002). Local control over prosecutors is a core
component of the American criminal justice system because prosecutors
reflect the values of their local communities. The fact that they
are elected by the voters of their districts assures their
Simply stated, “no one else is in a better position to make charging
decisions which reflect community values as accurately and effectively
as the prosecutor.” 55
Furthermore, the United States Supreme Court has
recognized that prosecutorial discretion provides a vehicle for
individualized justice. McCleskey v. Kemp, 481 U.S. 279, 311-12, 107
S.Ct. 1756, 95 L.Ed.2d 262 (1987). District attorneys general are
officers of the executive branch of government. Accordingly, in the
absence of a violation of law, the courts may not interfere with the
free exercise of their discretionary authority over the criminal
prosecutions in their respective districts. State v. Gilliam, 901 S.W.2d
385, 389 (Tenn.Crim.App.1995).
The constitutionality of Tennessee's death penalty
statutes is not undermined because local elected district attorneys
general may make discretionary charging decisions with the statutory
framework established by the General Assembly. We have repeatedly
rejected the argument that such discretion raises a constitutional
problem. State v. Hines, 919 S.W.2d 573, 582 (Tenn.1995); State v.
Brimmer, 876 S.W.2d at 86; State v. Cazes, 875 S.W.2d 253, 268 (Tenn.1994);
see also McCleskey v. Kemp, 481 U.S. at 311-12, 107 S.Ct. 1756; Gregg
v. Georgia, 428 U.S. 153, 199, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976).
Mr. Banks has not provided any argument that persuades us that these
decisions are in error.
The Allegedly Discriminatory Imposition of the
Mr. Banks asserts for the first time on appeal that
the death penalty in Tennessee is being imposed in a discriminatory
manner based on race, gender, and geography. While the record
contains no evidence of discrimination specific to his own case, Mr.
Banks relies on various statistical studies to support his belated
discrimination claims. We find that these claims came too late and
that Mr. Banks's evidence proves too little.
A defendant in a criminal proceeding who asserts an
equal protection violation must prove (1) the existence of purposeful
discrimination and (2) that this purposeful discrimination had a
discriminatory effect on him or her. McCleskey v. Kemp, 481 U.S. at
292, 107 S.Ct. 1756; see also State v. Irick, 762 S.W.2d 121, 129 (Tenn.1988).
A discriminatory purpose “implies more than intent as volition or
intent as awareness of consequences. It implies that the
decisionmaker ․ selected or reaffirmed a particular course of action
at least in part ‘because of,’ not merely ‘in spite of,’ its adverse
effects upon an identifiable group.” McCleskey v. Kemp, 481 U.S. at
298, 107 S.Ct. 1756 (quoting Personnel Adm'r of Mass. v. Feeney, 442
U.S. 256, 279, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979)). Thus, the
defendant must prove that a discriminatory purpose was one of the
factors that motivated the decision-maker. Arlington Heights v.
Metro. Hous. Dev. Corp., 429 U.S. 252, 265-66, 97 S.Ct. 555, 50 L.Ed.2d
Statistical proof may be used to prove the
existence of a discriminatory purpose in limited circumstances. In
rare cases, it can provide the sole evidence of discriminatory purpose,
but to do so, it must depict a stark pattern of discrimination that is
unexplainable on other grounds. McCleskey v. Kemp, 481 U.S. at
293-94, 107 S.Ct. 1756; Arlington Heights v. Metro. Hous. Dev. Corp.,
429 U.S. at 266. The United States Supreme Court has also permitted
the use of statistical evidence to prove discriminatory intent in jury
and in Title VII cases.57
However, in McCleskey v. Kemp, the United States
Supreme Court determined that two particular statistical studies 58
of murder cases in Georgia were insufficient to prove discriminatory
intent in the context of decisions relating to the imposition of the
death penalty in Georgia. The Court gave four reasons for its
conclusion. First, the Court determined that inferences drawn from
general statistics are not applicable to unique juries whose decisions
rest on a consideration of innumerable factors that vary according to
the characteristics of the defendant and the facts of the particular
offense. McCleskey v. Kemp, 481 U.S. at 294, 107 S.Ct. 1756.
Second, the Court pointed out that the State had no practical
opportunity to explain any of the statistical disparities suggested by
the studies. McCleskey v. Kemp, 481 U.S. at 296, 107 S.Ct. 1756.
Third, emphasizing the essential role that discretion plays in the
criminal justice process, the Court determined that “exceptionally
clear proof” of discriminatory purpose is required before the courts
will infer that this discretion has been abused. McCleskey v. Kemp,
481 U.S. at 297, 107 S.Ct. 1756. Fourth, a state legislature,
exercising its broad discretion with regard to criminal penalties, has
legitimate reasons to maintain capital punishment, and there was no
showing that the legislature maintained capital punishment because of
a racially disproportionate impact. McCleskey v. Kemp, 481 U.S. at
298-99, 107 S.Ct. 1756.
Discrimination Based on Race
Mr. Banks argues that the very same statistical
study discredited in McCleskey v. Kemp and several other general
“demonstrate the existence of racial discrimination in the imposition
of the sentence of death” and that “Tennessee lacks any means of
ensuring that discrimination does not infest the death sentencing
process.” However, he presents no evidence of improper
discriminatory purpose with regard to his prosecution on the part of
the District Attorney General, the trial court, or the jury that
convicted him, and he provides no statistical information specifically
regarding racial discrimination in connection with the imposition of
the death penalty in Tennessee.
In the absence of other, more direct evidence of a
racially discriminatory intent, the evidence offered by Mr. Banks
falls far short of the sort of exceptionally clear proof that would
enable the courts to conclude that the actions of the decision-makers
in his case were motivated by an improper discriminatory purpose based
on Mr. Banks's race or the race of Mr. Banks's victim. Accordingly,
we concur with the conclusion of the Court of Criminal Appeals that Mr.
Banks failed to prove that the imposition of the death penalty in his
case was the result of a racially discriminatory purpose.
Discrimination Based on Gender
Mr. Banks's argument regarding discrimination
based on gender consists of three sentences and includes no citations
to authority. He asserts that Tennessee must discriminate against
men in the imposition of the death penalty because “[t]here are 92 men
on death row [in Tennessee], but there are only two women.” This
evidence, by itself, does not provide the sort of exceptionally clear
proof upon which to conclude that the decision-makers in Mr. Banks's
case were motivated by an improper desire to discriminate against Mr.
Banks because he is a male. The difference between the number of men
and the number of women on death row can readily be attributed to the
fact that fewer women commit crimes that are death penalty eligible.60
Discrimination Based on Location of the Offense
Mr. Banks also insists that Tennessee's death
penalty is unconstitutional because of the variance in its application
among different counties in the State of Tennessee. He specifically
notes that although only 15% of the State's population resides in
Shelby County, 40% of the population on death row results from Shelby
County prosecutions. Additionally, Mr. Banks asserts that Shelby,
Davidson, Knox, Madison, Hamilton, and Sullivan Counties, though
representing only 42% of the State's population, are responsible for
approximately 69% of the death sentences.
Mr. Banks's argument on this point erroneously
assumes that variance from a random demographic result is necessarily
arbitrary. However, a clearer inspection of the geographic variance
in the application of the death penalty in Tennessee suggests that Mr.
Banks's statistical argument is misleading. While approximately 16%
of the State's population resides in Shelby County,61
consistently more than 30% of all the murders reported in Tennessee
between 2001 and 2007 are committed in Shelby County.62
In fact, the number of murders reported in Shelby County each year
averaged over 35% of the murders reported in the entire State during
that period. Thus, the actual number of murders reported in Shelby
County corresponds with the 39% of death row inmates from Shelby
Similarly, while only approximately 42% of the
State's population resides in Davidson, Hamilton, Knox, Madison,
Shelby, and Sullivan Counties, these counties consistently account for
more than 60% of the murders reported in the State of Tennessee
between 2001 and 2007.63
They have occasionally accounted for more than 70% of the murders
reported in Tennessee.64
Mr. Banks estimates the number of death row inmates from these
counties as 69%. If that is the case, the percentage of murders
reported in these counties closely approximates the percentage of
defendants on death row from these counties.65
Mr. Banks's arguments based on the location of the
offense fail to factor in the influence of prosecutorial discretion.
As can be seen, they also suffer from a lack of factual support.
Accordingly, Mr. Banks has failed to present sufficient evidence to
demonstrate that he received the death penalty because he was from
Shelby County. To the contrary, the jury sentenced Mr. Banks to death
because he murdered Mr. Al-Maily in the perpetration of a robbery and
for the purpose of avoiding, interfering with, or preventing a lawful
arrest or prosecution.
The Requirement that the Jury Agree Unanimously
to a Life Verdict
Mr. Banks argues that requiring the jury to agree
unanimously upon a life verdict violates the United States Supreme
Court's rulings in McKoy v. North Carolina, 494 U.S. 433, 110 S.Ct.
1227, 108 L.Ed.2d 369 (1990) and Mills v. Maryland, 486 U.S. 367, 108
S.Ct. 1860, 100 L.Ed.2d 384 (1988). This Court fully addressed and
rejected this argument in State v. Brimmer, 876 S.W.2d at 87. Mr.
Banks has not offered a persuasive argument showing that this decision
was in error.
The Pattern Jury Instruction Regarding the
Jury's Determination of the Existence of a Mitigating Circumstance
Mr. Banks asserts that the Tennessee Pattern Jury
Instructions are inconsistent with the United States Supreme Court's
ruling in McKoy v. North Carolina, 494 U.S. 433, 110 S.Ct. 1227, 108
L.Ed.2d 369 (1990) and Mills v. Maryland, 486 U.S. 367, 108 S.Ct.
1860, 100 L.Ed.2d 384 (1988). He argues that these instructions lead
jurors to believe erroneously that they must unanimously agree on any
mitigating circumstance. While conceding that this argument was
rejected generally in State v. Thompson, 768 S.W.2d 239, 251-52 (Tenn.1989),
he insists that this case differs from State v. Thompson because the
trial court did not give the special additional instruction that
“[b]ecause different people may have different views about what tends
to ameliorate or mitigate ․ you may weigh and consider any and all
circumstances which you feel tend to mitigate the offense or defendant
in question.” See State v. Thompson, 768 S.W.2d at 251.
In this case, the trial court instructed the jurors
that “[t]he defendant does not have the burden of proving mitigating
circumstances. There is no requirement of jury unanimity as to any
particular mitigating circumstance or that you agree on the same
mitigating circumstance.” We find that this instruction does not
lead jurors to believe that they must unanimously agree on the
existence of a mitigating circumstance. See, e.g., State v. Hall,
958 S.W.2d at 718 (appendix).
The Process for Ensuring Proportionality
Mr. Banks correctly asserts that states should
provide meaningful appellate proportionality review of death sentences
to ensure that the death penalty is not being arbitrarily and
capriciously imposed. He argues that the review process currently
being used by Tennessee's appellate courts is inadequate because (1)
the jury is not required to make written findings concerning
mitigating circumstances, (2) the informational base for comparative
review of first degree murder convictions is inadequate and
incomplete, (3) the courts' methodology for conducting comparative
review is flawed, and (4) the courts allow defendants to waive
presentation of mitigating evidence without requiring an offer of
proof as to what mitigation is available. He also insists that the
process fails to meet the standards required for due process.
While comparative proportionality review provides
an important safeguard against arbitrary and capricious sentencing, it
is not constitutionally required. State v. Bland, 958 S.W.2d 651, 663
(Tenn.1997). The Tennessee General Assembly has directed the
appellate courts to determine whether “[t]he sentence of death is
excessive or disproportionate to the penalty imposed in similar cases,
considering both the nature of the crime and the defendant.” Tenn.Code
Ann. § 39-13-206(c)(1)(D). We have noted that the automatic review by
this Court of every death sentence is an integral part of Tennessee's
death penalty process. State v. Pritchett, 621 S.W.2d 127, 140 (Tenn.1981).
There are no more serious cases that arrive at this
Court's doorstep than death penalty cases. They involve crimes of
the most serious impact, and they involve a penalty that is the most
severe that can be imposed. Reviewing any death penalty appeal is
given the utmost attention and highest priority by each of the members
of this Court. Mr. Banks's challenges to this Court's means and
methods of reviewing the proportionality of a death sentence have been
repeatedly rejected. See, e.g., State v. Reid, 91 S.W.3d at 286 n.
9; State v. Rimmer, 250 S.W.3d 12, 43 (Tenn.2008) (appendix); State
v. Vann, 976 S.W.2d 93, 118-19 (Tenn.1998) (appendix); State v. Keen,
926 S.W.2d at 743-44; State v. Barber, 753 S.W.2d 659, 663-668 (Tenn.1988).
The Tennessee General Assembly has provided that
“[t]he Tennessee Supreme Court may promulgate rules as it deems
appropriate to establish such procedures as are necessary to enable
the reviewing courts to properly review the death sentence.” Tenn.Code
Ann. § 39-13-206(c)(2). We continue to find the review process to be
a significant contributor to safeguarding against the arbitrary and
capricious application of the death penalty. We also continue to
find the existing procedures to be adequate to enable this Court to
properly carry out its review in death penalty cases.
The Constitutionality of Tennessee's Lethal
Mr. Banks contends that the State's lethal
injection protocol violates his constitutional rights against the
infliction of cruel and unusual punishment under the Eighth Amendment
to the United States Constitution. Specifically, Mr. Banks asserts
that his federal and state constitutional rights would be violated
through the use of Tennessee's execution method because the injections
are not prepared, administered or monitored by medical professionals
and because of the use of certain drugs in Tennessee's current
execution protocol. This Court recently upheld Tennessee's lethal
injection protocol in Abdur'Rahman v. Bredesen, 181 S.W.3d 292 (Tenn.2005).66
Both of these features of the drug protocol-the use of the three drug
protocol and the absence of medical professionals-were present in 2005
and remained when the protocol was further refined in 2007.67
Mr. Banks has failed to persuade this Court that we should reconsider
our earlier decision in Abdur'Rahman v. Bredesen.
The Penological Objective of the Death Penalty
Mr. Banks contends that the death penalty is
unconstitutional because it fails to serve any legitimate penological
objective. The death penalty serves the valid and legitimate
penological objectives of deterrence and retribution. Roper v.
Simmons, 543 U.S. 551, 571, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005); Atkins
v. Virginia, 536 U.S. 304, 319, 122 S.Ct. 2242, 153 L.Ed.2d 335
(2002). Thus, we reject Mr. Banks's argument that the death penalty
is unconstitutional because it fails to serve any legitimate
Consideration of the Mandatory Review Factors in
Tenn.Code Ann. § 39-13-206 with Regard to Mr. Banks's Sentence
When reviewing a conviction for first degree murder
and an accompanying sentence of death, Tenn.Code Ann.
§ 39-13-206(c)(1) requires the courts to review the record to
(A) The sentence of death was imposed in any
(B) The evidence supports the jury's finding of
statutory aggravating circumstance or circumstances;
(C) The evidence supports the jury's finding that
the aggravating circumstance or circumstances outweigh any mitigating
(D) The sentence of death is excessive or
disproportionate to the penalty imposed in similar cases, considering
both the nature of the crime and the defendant.
We have carefully reviewed the record in this case,
and, as we will discuss more fully, we have determined that Mr.
Banks's sentence was not imposed in any arbitrary fashion. We have
also determined that the evidence supports the jury's findings that
the State proved the aggravating circumstances in Tenn.Code Ann.
§ 39-13-204(i)(6) and Tenn.Code Ann. § 39-13-204(i)(7) beyond a
reasonable doubt and that these aggravating circumstances outweigh the
mitigating circumstances offered by Mr. Banks. Finally, we have
considered the nature of Mr. Banks's crime and all the evidence in the
record concerning Mr. Banks as a person, and we have concluded that
the sentence of death imposed by the jury in this case is neither
excessive nor disproportionate to the penalties imposed for similar
The Manner in which Mr. Banks's Sentence was
The jury that imposed Mr. Banks's sentence of death
unanimously found that the State proved beyond a reasonable doubt that
Mr. Banks was guilty of premeditated first degree murder and first
degree murder in the perpetration of a robbery. In addition, the
jury determined that the State proved beyond a reasonable doubt that
the manner in which the murder occurred supported the application of
the aggravating circumstances in Tenn.Code Ann. § 39-13-204(i)(6) and
Tenn.Code Ann. § 39-13-204(i)(7). Our review of the record satisfies
each of us that the trial, and particularly the sentencing hearing,
was conducted in a manner consistent with the applicable statutory
provisions and the rules of criminal procedure. Accordingly, we
conclude that Mr. Banks's sentence of death was not imposed in an
arbitrary fashion. See, e.g., State v. Young, 196 S.W.3d at 115; State
v. Hugueley, 185 S.W.3d 356, 380 (Tenn.2006); State v. Hall, 958 S.W.2d
The Evidentiary Support for the Aggravating
We have already discussed in detail the evidentiary
support for the two aggravating circumstances that the jury found to
exist in this case. These aggravating circumstances are fully
supported by the record.
The Relative Weight of the Aggravating and
In carrying out our obligation under Tenn.Code Ann.
§ 39-13-206(c)(1)(C), we must determine whether a reasonable juror
could find beyond a reasonable doubt that the aggravating
circumstances established by the State outweigh the mitigating
circumstances presented by the defendant. State v. Rimmer, 250 S.W.3d
at 34; State v. Stephenson, 195 S.W.3d 574, 593-94 (Tenn.2006).
Following a detailed review of this record, we find that a reasonable
jury could find, based on the evidence in this case, that the
aggravating circumstances outweigh the mitigating circumstances.
Mr. Banks presented and established numerous
mitigating circumstances that were intended to present him in a
sympathetic light. The eleven witnesses testifying on his behalf
pointed out (1) that Mr. Banks was only nineteen years old when he
killed Mr. Al-Maily, (2) that Mr. Banks developed HIV when he was
sixteen years old, (3) that Mr. Banks had remained employed, (4) that
Mr. Banks frequently transferred from one school to another during his
childhood, (5) that Mr. Banks's mother was often absent during his
childhood because she was either in prison or in a halfway house, (6)
that Mr. Banks's parents did not provide him adequate support, (7)
that Mr. Banks had nine siblings and that he was the youngest of seven
brothers, (8) that Mr. Banks was picked on by his older siblings when
he was a child, (9) that Mr. Banks was an active member of the Leewood
Baptist Church, (10) that Mr. Banks's artistic and culinary skills
included drawing pictures and cooking, (11) that Mr. Banks had been a
model prisoner, (12) that while incarcerated, Mr. Banks had
participated in and completed numerous rehabilitation certificate
programs, (13) that members of Mr. Banks's church and family wished to
remain in contact with him, (14) that two of Mr. Banks's sisters were
raped, (15) that Mr. Banks loved animals, particularly dogs, and (16)
that Mr. Banks was a positive member of his church and a gentle person.
The State presented evidence that undermined Mr.
Banks's mitigation evidence. This evidence showed that, despite the
confinement of Mr. Banks's mother, Mr. Banks and his mother had a
close relationship. It also showed that Mr. Banks had a loving and
supportive relationship with his grandmother before her death and that
he was also cared for by his older siblings and members of the Leewood
Baptist Church. In other words, Mr. Banks actually had a great deal
of support during his childhood from his extended family and his
The mitigation evidence regarding his kind, gentle
nature was also undermined by evidence of his criminal history which
included assault, battery, and domestic violence. In contrast to the
testimony regarding Mr. Banks's gentle nature, his former girlfriend
described how Mr. Banks could be extremely cruel and violent. She
recounted numerous incidents of domestic violence, including one
incident in which Mr. Banks pulled a gun and pointed it at her stomach
when she was eight months pregnant.
Based on this evidence, a rational juror could
easily have concluded that the aggravating circumstances-killing a
witness to avoid arrest and prosecution and killing in the
perpetration of a robbery-outweighed the various mitigating
circumstances presented by Mr. Banks, particularly his youth, his
health, his difficult family circumstances, his active involvement in
his church community, and his active involvement in rehabilitation
certificate programs in prison.
The Proportionality of Mr. Banks's Sentence
When this Court conducts the proportionality review
required by Tenn.Code Ann. § 39-13-206(c)(1)(D), we do not function as
a “super jury” that simply substitutes our judgment for the sentencing
jury. State v. Godsey, 60 S.W.3d 759, 782 (Tenn.2001). Rather, our
task is to take a broader perspective than the jurors who sentenced Mr.
Banks in order to determine whether his death sentence “is
disproportionate to the sentences imposed for similar crimes and
similar defendants.” State v. Thacker, 164 S.W.3d at 232 (quoting
State v. Bland, 958 S.W.2d at 664). In doing so, the pool of cases
upon which we draw in conducting this analysis are “first degree
murder cases in which the State sought the death penalty, a capital
sentencing hearing was held, and the jury determined whether the
sentence should be life imprisonment, life imprisonment without
possibility of parole, or death.” State v. Rice, 184 S.W.3d at 679.
No two defendants or their crimes are ever
identical. Accordingly, the purpose of our review of other capital
cases is not to identify cases that correspond precisely with the
particulars of the one being analyzed. State v. Copeland, 226 S.W.3d
287, 306 (Tenn.2007); State v. Thacker, 164 S.W.3d at 233. Instead,
our task is to “identify and invalidate the aberrant death sentence.”
State v. Thacker, 164 S.W.3d at 233 (quoting State v. Bland, 958 S.W.2d
at 665). A sentence is not disproportionate because other defendants
have received a life sentence under similar circumstances. State v.
Carruthers, 35 S.W.3d 516, 569 (Tenn.2000). Rather, a death sentence
will be excessive or disproportionate where “the case taken as a whole
is plainly lacking in circumstances consistent with those in cases
where the death penalty has been imposed.” State v. Thacker, 164 S.W.3d
at 233 (quoting State v. Bland, 958 S.W.2d at 668); State v. Godsey,
60 S.W.3d at 782.
This Court uses “the precedent-seeking method of
comparative proportionality review, in which we compare a case with
cases involving similar defendants and similar crimes.” State v.
Copeland, 226 S.W.3d at 305 (quoting State v. Davis, 141 S.W.3d at 619
-620). We examine “the facts and circumstances of the crime, the
characteristics of the defendant, and the aggravating and mitigating
circumstances involved, and we compare this case with other cases in
which the defendants were convicted of the same or similar crimes.” State
v. Stevens, 78 S.W.3d at 842. Our approach does not employ a rigid,
objective test. Rather, each member of the Court draws upon his or
her experience and judgment in comparing the case being reviewed with
other cases. See State v. Bland, 958 S.W.2d at 668.
When we conduct this comparison with regard to the
nature of the crime, we generally consider “(1) the means of death;
(2) the manner of death; (3) the motivation for the killing; (4)
the place of death; (5) the victim's age, physical condition, and
psychological condition; (6) the absence or presence of premeditation;
(7) the absence or presence of provocation; (8) the absence or
presence of justification; and (9) the injury to and effect upon non-decedent
victims.” State v. Rimmer, 250 S.W.3d at 35; see also State v.
Rollins, 188 S.W.3d at 575. With regard to the defendant, we
generally compare the defendant's “(1) prior criminal record, if any;
(2) age, race, and gender; (3) mental, emotional, and physical
condition; (4) role in the murder; (5) cooperation with authorities;
(6) level of remorse; (7) knowledge of the victim's helplessness; and
(8) potential for rehabilitation.” State v. Rimmer, 250 S.W.3d at 35;
see also State v. Rollins, 188 S.W.3d at 575.
We turn first to the nature of Mr. Banks's offense.
Several days before Mr. Banks shot Mr. Atilebawi and then shot and
killed Mr. Al-Maily, he formulated a plan with Mr. Hilliard to extract
revenge on Mr. Atilebawi for conduct that had allegedly occurred
almost one year earlier. He obtained a firearm from Mr. Hilliard and
then waited for the opportunity to strike.
This opportunity came during the early morning
hours of September 16, 2002 when Mr. Banks went to Mr. Atilebawi's
home for the purpose of seeking revenge. The fact that Mr. Al-Maily
was visiting Mr. Atilebawi did not deter Mr. Banks. Carrying out the
plan he had devised with Mr. Hilliard, Mr. Banks shot Mr. Atilebawi
four times and then tried to conceal his body. After shooting Mr.
Atilebawi, Mr. Banks robbed Mr. Al-Maily and then ordered him to lie
face down on the floor of Mr. Atilebawi's bedroom. Mr. Al-Maily did
not resist. After looting Mr. Atilebawi's house and loading the
stolen personal property into a stolen Jeep Cherokee, Mr. Banks calmly
and deliberately returned to Mr. Atilebawi's house, walked to Mr.
Atilebawi's bedroom where Mr. Al-Maily was lying on the floor, and
fatally shot Mr. Al-Maily in the back of the head. Mr. Banks and Mr.
Hilliard then left the scene of their crimes with the stolen property
and the stolen automobiles. Later that morning, apparently believing
that both Mr. Atilebawi and Mr. Al-Maily were dead, Mr. Banks went on
a spending spree with the money he had stolen from Messrs. Atilebawi
Mr. Banks had no personal animosity towards Mr. Al-Maily.
In fact, he characterized their relationship as friendly. Shooting
Mr. Al-Maily was not part of Mr. Banks's plan of revenge against Mr.
Atilebawi. Neither was it necessary to commit the offense, because
Mr. Al-Maily cooperated fully with Mr. Banks during the robbery and
offered no resistence whatsoever to either Mr. Banks or Mr. Hilliard.
Mr. Banks shot Mr. Al-Maily in the back of the head because he did not
want to leave behind any live witnesses to his crimes.
We now turn to Mr. Banks himself. While he opted
not to testify on his own behalf during the sentencing phase, he
called eleven mitigation witnesses. These witnesses presented a
positive and sympathetic image of Mr. Banks. An implicit, and at
times explicit, undercurrent of much of the testimony focused on the
fact that Mr. Banks was only nineteen years old when he murdered Mr.
Mr. Banks was part of a large family that faced
significant social and financial challenges. Despite the lengthy
periods when his mother was in custody, he had a close relationship
with his mother and received support from his grandmother, his older
siblings, and members of his church. While many of his family and
friends saw Mr. Banks's soft-hearted and gentle side, Mr. Banks became
capable of resorting to cruelty and violence. By the time he
murdered Mr. Al-Maily, he had been convicted of assault, battery, and
domestic violence. He did not tell his former girlfriend that he was
HIV-positive, and he pointed a gun to her stomach when she was eight
We find that the death sentence, as applied to Mr.
Banks in this case, is neither excessive nor disproportionate when
compared to defendants in other cases. For example, in State v.
Thacker this Court expressly noted that “[w]e have upheld the death
penalty in several similar cases where the defendant stole from the
victims and committed murder to avoid arrest or prosecution.” State
v. Thacker, 164 S.W.3d at 233. Additionally, in State v. Davis we
observed that we have “frequently upheld the death penalty in first
degree murder cases involving shooting offenses committed in the
course of a robbery or other felony.” State v. Davis, 141 S.W.3d at
The following are among the cases in which this
Court determined that application of the death penalty was not
disproportionate in light of other similar circumstances. In State
v. Thacker, the defendant stabbed a wrecker driver who discovered that
the defendant was using a stolen credit card. The defendant later
returned to conceal the body and to steal the victim's credit cards
and cash. State v. Thacker, 164 S.W.3d at 233. In State v. Reid,
the defendant shot and killed two unresisting employees while they
were lying face down on the floor as part of a planned and
premeditated robbery in order to avoid arrest or prosecution. State
v. Reid, 91 S.W.3d at 287. In State v. Sims, the defendant shot the
victim in the back of head during a burglary of the victim's home in
order to prevent identification. State v. Sims, 45 S.W.3d 1, 19 (Tenn.2001).
In State v. Chalmers, the Court upheld a death sentence where a
defendant shot the victim five times as part of a robbery. State v.
Chalmers, 28 S.W.3d 913, 915, 919 (Tenn.2000). Finally, in State v.
King, the Court upheld the conviction of a defendant who fatally shot
a tavern owner who was not resisting at the time. State v. King, 694
S.W.2d 941, 943, 947 (Tenn.1985).
We have also concluded that the mitigating
circumstances in this case do not carry a disproportionately heavier
weight than the mitigating circumstances in other cases in which the
death penalty has been approved. The death penalty has been found
proportional in a number of cases involving defendants who were as
young as or younger than Mr. Banks when they murdered their victims. State
v. Davis, 141 S.W.3d at 621-22 (eighteen-year-old defendant); State
v. Berry, 141 S.W.3d at 571-72 (nineteen-year-old defendant); State
v. Pike, 978 S.W.2d at 922-23 (eighteen-year-old defendant).
Application of the death penalty has also been found not to be
excessive in cases where the defendant experienced a difficult family
life with parents in prison or otherwise absent, resulting in being
raised with and by siblings and a grandmother. State v. Davis, 141
S.W.3d at 621-22; State v. Berry, 141 S.W.3d at 571. In terms of
being a model prisoner, this Court has found evidence of being a model
inmate, including being a positive uplifting member to the prisoner
community, not to render application of the death penalty
disproportionate. State v. Austin, 87 S.W.3d 447, 457-58 (Tenn.2002).
Nor has suffering from disease or maintaining close contact with
family members been sufficient to render a death sentence excessive. State
v. Austin, 87 S.W.3d at 458.
Considering the aggravating and mitigating
circumstances in this case in light of all the evidence in this case,
we find that Mr. Banks's conviction and sentence are not “plainly
lacking in circumstances consistent with those in cases where the
death penalty has been imposed.” State v. Thacker, 164 S.W.3d at 233
(quoting State v. Bland, 958 S.W.2d at 668); State v. Godsey, 60 S.W.3d
at 782. Accordingly, we find the application of the death sentence
in this case to be neither disproportionate nor excessive.
In summary, we have concluded that the Court of
Criminal Appeals dealt correctly with regard to all the issues raised
by Mr. Banks on this appeal except the trial court's submission of the
Tenn.Code Ann. § 39-13-204(i)(6) aggravating factor to the jury. We
have determined that the Court of Criminal Appeals erred by concluding
that Tenn.Code Ann. § 39-13-204(i)(6) was not supported by sufficient
evidence. Therefore, we reverse the Court of Criminal Appeals's
disposition of that issue, but affirm the judgment of the Court of
Criminal Appeals in all other respects.
Mr. Banks's sentence of death shall be carried out
on December 9, 2009, unless otherwise ordered by this Court or other
proper authority. It appearing that Mr. Banks is indigent, the costs
of this appeal are taxed to the State of Tennessee.
(Excerpts from the Decision of the Court of
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
April 10, 2007 Session
STATE OF TENNESSEE v. DEVIN BANKS
Direct Appeal from the Criminal Court for Shelby
No. 03-01956 Joseph B. Dailey, JudgeNo.
W2005-02213-CCA-R3-DD-Filed July 6, 2007Tenn. R.App. P. 3 Appeal as of
Right; Judgment of the Criminal Court Affirmed
David G. Hayes, J., delivered the opinion of the
court, in which John Everett Williams and Alan E. Glenn, JJ., joined.
Robert Jones, Shelby County Public Defender; Phyllis
Aluko and Tony Brayton, Assistant Public Defenders (on appeal); Kathy
Kent and Latonya Burrow, Assistant Public Defenders (at trial),
Memphis, Tennessee, for the Appellant, Devin Banks.
Robert E. Cooper, Jr., Attorney General and
Reporter; Michael Moore, Solicitor General; Clarence Lutz, Assistant
Attorney General; William L. Gibbons, District Attorney General,
Stacy McEndree, Assistant District Attorney General, and Karen Cook,
Assistant District Attorney General, for the Appellee, State of
Failure to Charge Aggravating Circumstances in
The Appellant asserts that the “imposition of the
death penalty ․ violated due process of law because the aggravating
circumstances were not set forth in the indictment.” In this regard,
he contends that “[a]ny fact that increases the maximum penalty for a
crime must be charged in an indictment, submitted to a jury, and
proven beyond a reasonable doubt in order to satisfy the 5th
Amendment's Due Process Clause and the 6th Amendment's notice and jury
trial guarantees.” With reliance upon Apprendi v. New Jersey and
Ring v. Arizona, the Appellant submits that he was denied due process
of law because the indictment returned by the grand jury did not
include facts that would qualify him for the death penalty. In other
words, he maintains that first degree murder is not a capital offense
unless accompanied by aggravating factors. In order to elevate the
crime to capital murder, he alleges that the indictment must include
language of the statutory aggravating circumstance(s).
The Tennessee Supreme Court has consistently
rejected this argument by holding that aggravating circumstances need
not be pled in the indictment. State v. Reid, 164 S.W.3d 286, 312
(2005); Leach, 148 S.W.3d at 59; Berry, 141 S.W.3d at 562; State v.
Holton, 126 S.W.3d 845, 863 (Tenn.2004); State v. Dellinger, 79 S.W.3d
458, 467 (Tenn.2002). Our supreme court explained, “[t]he focus in
Apprendi, Ring, and Blakely was on the Sixth Amendment right to trial
by jury,” and “the Court expressly declined to impose the Fifth
Amendment right to presentment or grand jury indictment upon the
States.” Berry, 141 S.W.3d at 560. The Appellant is not entitled to
relief on this issue.
Introduction of Photograph of the Victim
During the testimony of Leonard Porter, a criminal
investigator for the District Attorney General's Office, the
prosecutor moved to admit a photograph of Atilebawi's injuries. The
photograph, taken the week of the trial, depicted the right side of
the victim's head and showed a large scar beginning at his forehead
and continuing to the back of his head. The prosecutor stated that
introduction of the photograph was relevant to “show all of these
elements of the criminal attempt murder in the first degree․” She
further explained that no photographs of Atilebawi's injuries were
taken at either “the crime scene or the hospital because they were
trying to save his life․” The Appellant objected stating that the
victim had testified in person and that the photograph failed to prove
any element of the crime. The trial court made the following ruling
regarding the admission of the photograph:
Well, my response to all of what all of you have
said would be that as to relevance, it's very relevant. I mean,
there is no question it was relevant. It shows the horrific nature
of the severe injury that this man sustained, and it tends to
corroborate what he testified to and what the doctor from The Med
It's not prejudicial in that it doesn't show-it's
not gory or bloody, and the jury saw him when he was in here yesterday
and saw essentially the same injury. The only-I think the only
plausible argument against allowing it in would be that it would be
cumulative. The victim was in here yesterday.
But I think that the State's burden to prove their
case, I think gives them the right to introduce one photograph.
They're not asking to introduce ten or [twenty] but to introduce one
photograph that can be shown to the jury to corroborate the injuries
that were testified to by the victim himself and by the doctor from
The Med ․ [t]o show the injuries in general. To show that this man
was severely injured by the gunshot wounds to the back of the head,
that half his head was blown off to show all of those things of course.
The trial court continued:
․ It is relevant and it's not prejudicial. It is
perhaps somewhat cumulative but that-for example, had the State
offered it into evidence when this victim was on the stand, I would
have let them introduce it at that time because I think it's fair to
allow at least one photograph of injuries, even though the person is
sitting here live at this point in time, to document the record, to
remind the jury later in the trial, at closing argument, during
deliberations, that this is what this man looks like so that there is
an actual photograph of it.
Photographs are always by their nature cumulative
to some extent. By definition, a photograph is going to be cumulative
of something else. You can always have a person come in and testify
to what a photograph otherwise depicts․
․ And a photograph will provide [the jury] with
that documented evidence that they can look at of injuries that they
saw in person four or five days earlier․
On appeal, the Appellant contends that the trial
court erred in permitting the introduction of the photograph of the
surviving victim, arguing that the trial court should have excluded
the photograph because of the inevitable danger of unfair prejudice.
Additionally, he asserts that the photograph exaggerated the victim's
injuries and was irrelevant, as the photograph was taken years after
the incident. Finally, the Appellant contends that, since the jury
had already seen Atilebawi's injuries during his testimony at trial,
the admission of the photograph was prejudicially cumulative. The
State responds that the trial court's ruling was proper.
Specifically, the State contends that the photograph was relevant to
establish the Appellant's intent to murder Atilebawi and that it
establishes that Atilebawi suffered serious bodily injury. Both
elements are necessary to support convictions of attempted first
degree murder and especially aggravated robbery. See T.C.A.
§ 39-13-202, -403. The State also contends that the photograph
illustrated the testimony of Dr. Timmons and Atilebawi.
The admission of photographs is generally
discretionary with the trial court and, absent an abuse of that
discretion, will not result in the grant of a new trial. State v.
Banks, 564 S.W.2d 947, 949 (Tenn.1978). However, a photograph must
be relevant to an issue that the jury must decide before it may be
admitted into evidence. State v. Vann, 976 S.W.2d 93, 102 (Tenn.1998),
cert. denied, 526 U.S. 1071, 119 S.Ct. 1467, 143 L.Ed.2d 551 (1999); State
v. Braden, 867 S.W.2d 750, 758 (Tenn.Crim.App.1993); see also Tenn.
R. Evid. 401, 402. Evidence that is not relevant to prove some part
of the prosecution's case should not be admitted solely to inflame the
jury and prejudice the defendant. Additionally, the probative value
of the photograph must outweigh any unfair prejudicial effect that it
may have upon the trier of fact. Vann, 976 S.W.2d at 102-03; see
also Tenn. R. Evid. 403 (“[a]lthough relevant, evidence may be
excluded if its probative value is substantially outweighed by the
danger of unfair prejudice”).
While it can be said that photographs of crime
victims who suffer serious bodily injury are prejudicial by their very
nature, a prejudicial photograph is not per se excludable. What is
excluded is evidence which is unfairly prejudicial, in other words,
evidence which has an undue tendency to suggest a decision on an
improper basis, frequently, though not necessarily, an emotional one.
Banks, 564 S.W.2d at 951.
The trial court determined that the photograph was
relevant and not prejudicial. We agree that the photograph was
relevant to supplement the testimony of Dr. Timmons, as well as that
of the victim himself. See State v. Cole, 155 S.W.3d 885, 913 (Tenn.2005)
(Appendix), cert. denied, 546 U.S. 829, 126 S.Ct. 47, 163 L.Ed.2d 79
(2005). We also agree that the trial court's acknowledgment of the
need to preserve a record for the jury is accurate. Additionally,
the photograph in question is not particularly gruesome. Thus, we
conclude that the probative value of the photograph is not outweighed
by its prejudicial effect, and the trial court did not abuse its
discretion in allowing its admission. Further, it does not
affirmatively appear that the “admission of the photograph[ ] has
affected the results of the trial.” See Banks, 564 S.W.2d at 953.
The Appellant is not entitled to relief on this issue.
Admission of the Appellant's Statement
The Appellant next argues that the trial court
erred in permitting introduction of statements made by the Appellant
without first ruling on the Appellant's motion to suppress those
statements. The State responds that the issue is waived because the
Appellant failed to pursue the motion to suppress.
The record before this court reflects that the
Appellant filed a motion to suppress his statements on July 16, 2003,
alleging that his statements were involuntarily given as he was under
duress at the time the statements were made. A hearing was conducted
on July 25, 2003, during which time the Appellant requested and was
granted a continuance until October 31, 2003. As the State correctly
asserts, the record is silent as to whether the Appellant actively
pursued the motion to suppress after this point. The record does
indicate that on April 4, 2005, before voir dire of the jury panel
commenced, the Appellant's counsel made the following remarks:
Judge, I looked through the court jacket this
morning, making sure since I was not on this case originally or at the
time the motions were heard and I believe that all motions that have
been filed have been discussed and ruled upon except for the 608, 609
motion that Your Honor took under advisement.2
During the State's case-in-chief, the Appellant's
statements to law enforcement officers were admitted without any
objection by the Appellant. Additionally, the Appellant, in his
motion for new trial, raised the issue of whether the trial court
erred in denying the motion to suppress, supporting the conclusion
that the motion was in fact denied.
It is clear from the record before this court that,
at the trial level, the Appellant proceeded under the assumption that
the trial court had denied his motion to suppress. The Appellant,
however, now maintains on appeal that he did not abandon the
suppression issue. He adds that the fact that the trial court failed
to state its findings on the record violated his constitutional rights
to due process and to a fair jury trial, in addition to violating Tenn.
R.Crim. P. 12(e).
From the actions of the parties and the trial court
during the trial, including the failure of the Appellant to object to
the introduction of the statements, it appears that all parties
believed that the motion to suppress had been denied. Most notably,
the trial court's admission of the statements during the trial
suggests that the trial court was under the assumption that it had
overruled the Appellant's motion. While the record presently before
this court does not contain an order of the trial court reflecting its
ruling upon the motion, we cannot conclude that its absence is
dispositive. It is the burden of the Appellant to prepare a full and
complete record for appellate review. See Tenn. R.App. P. 24(b). Moreover,
the record clearly reflects that no objection was made by the
Appellant to the admission of his statements at trial.
Even assuming for argument's sake that no ruling
was ever made by the trial court, it was the Appellant who failed to
obtain a ruling on that motion and failed to object when the evidence
was introduced at trial. Accordingly, we agree with the State that
the Appellant has abandoned the motion by failing to call to the trial
court's attention the lack of a ruling on his suppression motion and
by failing to object to the admission of the statements at trial.
See Tenn. R.App. P. 36(a). If a motion is not acted upon, the
litigant should renew it. “He may not lull the judge into thinking
that it has been abandoned and then, after he has lost, pull a rabbit
out of his pocket in the form of a forgotten motion.” United States
v. Taglia, 922 F.2d 413, 416-17 (7th Cir.), cert. denied, 500 U.S.
927, 111 S.Ct. 2040, 114 L.Ed.2d 125 (1991). As noted, the Appellant
failed to renew his motion or ask for a ruling prior to voir dire.
Later, when the State sought introduction of his statements, the
Appellant remained silent and made no objection.
A similar issue was addressed by the Court of
Appeals in Grandstaff v. Hawks, 36 S.W.3d 482 (Tenn.Ct.App.2000). In
Grandstaff, the trial court did not unequivocally overrule a motion in
limine. The Court of Appeals determined that the motion in limine
should have been renewed by objection and that the failure to renew
the motion in limine had waived the issue. In reaching this
conclusion, the Court of Appeals held:
Objections to the introduction of evidence must be
timely and specific. See Overstreet v. Shoney's, Inc., 4 S.W.3d 694,
702 (Tenn.Ct.App.1999). An evidentiary objection will be considered
timely either if it is made in a motion in limine or if it is made at
the time the objectionable evidence is about to be introduced. See
Wright v. United Servs. Auto. Ass'n, 789 S.W.2d 911, 914 (Tenn.Ct.App.1990).
A party who files an unsuccessful motion in limine need not renew
the motion when the evidence is introduced as long as the trial court
“clearly and definitively” overruled the motion in limine when it was
made. See State v. Brobeck, 751 S.W.2d 828, 833-34 (Tenn.1988); State
v. McGhee, 746 S.W.2d 460, 462 (Tenn.1988); Wright v. United Servs.
Auto. Ass'n, 789 S.W.2d at 914. If, however, the trial court has not
“clearly and definitively” acted on the motion, the moving party must
renew the motion contemporaneously with the introduction of the
objectionable evidence. Failure to renew the motion will preclude
the moving party from taking issue on appeal with the admission of the
Grandstaff, 36 S.W.3d at 488.
Tennessee law is well-established that a party who
invites or waives error, or who fails to take reasonable steps to cure
an error, is not entitled to relief on appeal. See Tenn. R.App. P.
36(a). Moreover, if waived, this court will not consider the issue
on appeal unless it is clear from the record that plain error was
The motion to suppress filed by the Appellant on
July 15, 2003, presented two allegations in support of his contention
that the statements were taken in violation of his constitutional
rights, namely that:
1. The [Appellant] did not freely, knowingly and
voluntarily give said statements.
2. The [Appellant] made said statements while under
No additional facts or argument were presented in
support of the motion. At the July 25, 2003 motion to suppress
hearing, Sergeant Mark Miller testified that the Appellant was advised
of his rights and signed a waiver of rights form. The Appellant
informed Sergeant Miller that he had an eleventh grade education.
Sergeant Miller stated that the Appellant understood English and could
read and write. In addition to the written waiver, the Appellant
verbally indicated that he understood and waived his constitutional
rights. Sergeant Miller testified that, at no time, did he threaten,
coerce, or make promises to the Appellant.
Sergeant James Fitzpatrick testified that, one day
after the Appellant's initial statement, the Appellant informed law
enforcement officials that he wanted to change some facts related in
his initial statement. Sergeant Fitzpatrick permitted the Appellant
to make corrections to the statement. Sergeant Fitzpatrick observed
that the Appellant had no problems communicating and appeared to be of
sound mind. The Appellant never requested an attorney. Sergeant
Fitzpatrick testified that, at no time, did he threaten, coerce, or
make promises to the Appellant. He also recalled that the Appellant
was permitted to use the restroom during the interview and that the
Appellant stopped to eat on two occasions.
Inherent in the admissibility of the written
statement is that the statement was voluntarily given by a defendant
knowledgeable of his constitutional rights and accompanied by a valid
and knowing waiver of those rights. State v. Berry, 141 S.W.3d 549,
577 (Tenn.2004) (quoting Miranda v. Arizona, 384 U.S. 436, 467, 86
S.Ct. 1602, 1624, 16 L.Ed.2d 694 (1966); State v. Middlebrooks, 840
S.W.2d 317, 326 (Tenn.1992), cert. dismissed, 510 U.S. 124, 114 S.Ct.
651, 126 L.Ed.2d 555 (1993)). In determining the admissibility of a
confession, the particular circumstances of each case must be examined
as a whole. Berry, 141 S.W.3d at 577 (citing State v. Smith, 933 S.W.2d
450, 455 (Tenn.1996)). A defendant's subjective perception alone is
not sufficient to justify a conclusion of involuntariness in the
constitutional sense. Id. (citations omitted). The primary
consideration in determining the admissibility of the evidence is
whether the confession is an act of free will. Id. at 578 (citing
State v. Chandler, 547 S.W.2d 918, 920 (Tenn.1977)). A confession is
not voluntary when “the behavior of the state's law enforcement
officials was such as to overbear” the will of an accused and “bring
about confessions not freely self-determined.” Id. (citing State v.
Kelly, 603 S.W.2d 726, 728 (Tenn.1980)).
The testimony revealed that the Appellant's
communication skills appeared adequate and that he was capable of
reading, writing, and comprehension. The Appellant was advised of
his constitutional rights and, without coercion or force, voluntarily
waived his rights and provided an inculpatory statement. Neither
officer indicated that the Appellant was under duress at the time he
made his two statements. The officers provided the Appellant with
food and restroom breaks during the interview process, and the
Appellant never asked for an attorney. Therefore, we conclude that
the Appellant knowingly waived his Miranda rights and voluntarily
provided the statements to the police. Thus, the Appellant is not
entitled to relief on this issue.
Victim Impact Jury Instruction was Coercive
The Appellant next contends that “[t]he jury
instructions given by the trial judge with respect to the jury's
consideration of victim impact evidence constituted a coercive
instruction.” In instructing the jury, the trial court provided the
following instruction as to victim impact evidence:
The prosecution has introduced what is known as
victim impact evidence. This evidence has been introduced to show
the financial, emotional, psychological or physical effects of the
victim's death on the members of the victim's immediate family and
close friends. You may consider this evidence in determining an
However, your consideration must be limited to a
rational inquiry into the culpability of the [Appellant], not an
emotional response to the evidence. Victim impact evidence is not
the same as an aggravating circumstance. Proof of an adverse impact
on the victim's family or close friends is not proof of an aggravating
circumstance. Introduction of victim impact evidence in no way
relieves the State of its burden to prove beyond a reasonable doubt to
you at least one aggravating circumstance which has been alleged.
You may consider this victim impact evidence in
determining the appropriateness of the death penalty only if you first
find the existence of one or more aggravating circumstances has been
proven beyond a reasonable doubt by evidence independent from the
victim impact evidence and find that the aggravating circumstance or
circumstances found outweigh the finding of one or more mitigating
circumstances beyond a reasonable doubt.
The Appellant, relying upon Johnson v. Hardin, 926
S.W.2d 236, 242 (Tenn.1996), asserts that the trial court's
instruction “amounts to an undue intrusion into the exclusive province
of the jury.” He adds that “there is a reasonable probability that
the instruction coerced a finding by the jury that the aggravating
circumstances outweighed the mitigating circumstances because to find
otherwise would require the jury to ignore the emotional victim impact
evidence presented by the State.” The Appellant's reliance upon
Johnson is misplaced because in Johnson our supreme court addressed
the issue of the trial court's deliverance of a “dynamite charge” to a
deadlocked jury. The instruction in Johnson “raised [to the
deadlocked jury] the specter of the time, effort, and money that a new
trial would entail.” Johnson, 926 S.W.2d at 243. The charge
suggested that the jurors had a duty to agree. In this regard, our
supreme court held “[n]othing should be done or said to a juror which
can in any manner be taken by that juror to indicate that he or she
should abandon an honestly held conviction in order to reach a verdict
so that time and money will be saved.” Id. (quoting Bass v. Barksdale,
671 S.W.2d 476, 486 (Tenn.Ct.App.1984)). Such a situation is not
presently before the court, as the factual circumstances in Johnson
are clearly distinguishable from those in the present case.
In fact, the instruction provided to the jury in
the present case was recommended by our supreme court in State v.
Nesbit, 978 S.W.2d 872, 892 (Tenn.1998), and was again approved in
State v. Reid, 91 S.W.3d 247, 283 (Tenn.2002). See also State v.
Riels, 216 S.W.3d 737 (Tenn.2007); Reid, 164 S.W.3d at 336-37 (Appendix);
Cole, 155 S.W.3d at 914 (approving Nesbit victim impact instruction).
Moreover, in Reid, our supreme court specifically noted that any
contradiction arising between the instruction and the statute inured
to the benefit of the defendant and, thus, should not entitle a
defendant to relief. Reid, 91 S.W.3d at 283. Accordingly, the
Appellant is not entitled to relief on this issue.
Hughes, Mr. Atilebawi's girlfriend and caretaker, explained that Mr.
Al-Maily was nicknamed “Uncle” “[b]ecause he was ․ the Uncle of the
whole group. If they needed something, he'll help them. He was a
real good guy like that. If you're hungry, he'll ․ get you something
to eat․ [H]e was a real good person.”
Banks was dating Sondra Thompson in September 2001. One night,
during a visit to Mr. Atilebawi's home, Mr. Banks, Ms. Thompson, and
Mr. Atilebawi fell asleep in Mr. Atilebawi's living room. All of
them ended up spending the night in the living room. When she awoke,
Ms. Thompson discovered that the side of the shorts she was wearing
had been cut while she was sleeping, and she decided that Mr.
Atilebawi must have done it. When Mr. Banks awakened, Ms. Thompson
showed him her shorts and told him that she thought Mr. Atilebawi had
cut them. Mr. Banks did not appear to be surprised or concerned.
He simply continued walking Ms. Thompson to her car and then returned
to the house to go back to sleep. The police were never called, and,
at least as far as this record shows, Mr. Banks never confronted Mr.
Atilebawi about the incident. Ms. Thompson broke up with Mr. Banks
in December 2001 because of the verbal and physical abuse she received
from Mr. Banks.
record contains little evidence regarding how Mr. Atilebawi had
allegedly cheated Mr. Banks.
Banks was on his way from Maco Tires and Auto Care to his brother's
house to get some sleep when he was spotted by Officer Miller.
Ann. § 39-13-202(a)(1) (Supp.2002).
Ann. § 39-13-202(a)(2) (Supp.2002).
Ann. § 39-12-101 (1997).
Ann. § 39-13-403(a) (1997).
Ann. § 39-13-204(i)(6) (Supp.2002).
Ann. § 39-13-204(i)(7) (Supp.2002).
the jury determined that “[t]he murder was committed for the purpose
of avoiding, interfering with, or preventing a lawful arrest or
prosecution of the defendant or another” and that “[t]he murder was
knowingly committed, solicited, directed, or aided by the defendant,
while the defendant had a substantial role in committing or attempting
to commit, or was fleeing after having a substantial role in
committing or attempting to commit, any robbery.”
Banks is correct that the statement does not qualify for the dying
declaration exception to the hearsay rule. Mr. Atilebawi's statement
cannot qualify as a dying declaration because he survived the attack.
State v. Lewis, 235 S.W.3d 136, 149 (Tenn.2007) (noting that one
element of the dying declaration exception is that the declarant is
“dead at the time of the trial”). Tennessee evidence law provides
that the exception for statements made “under belief of impending
death” only applies where the declarant is unavailable because he or
she has died. Tenn. R. Evid. 804(b)(2); Tenn. R. Evid. 804(b)(2)
advisory comm'n cmt.; see also Neil P. Cohen et al., Tennessee Law
of Evidence § 8.35 [b], at 8-156 (5th ed. 2005) (“Tennessee Law
of Evidence ”).
Schauer, On the Supposed Jury-Dependence of Evidence Law, 155 U. Pa.
L.Rev. 165, 176-77 (2006).
evidence does not permit an exact determination of the length of the
interval between Mr. Atilebawi being shot and Officer Jones arriving
on the scene. For the purpose of this opinion, we accept Mr. Banks's
suggested time frame that approximately six hours passed between Mr.
Atilebawi being shot and his response to Officer Jones's inquiry.
Const. art. I, § 9 (“[t]hat in all criminal prosecutions, the
accused hath the right ․ to meet the witnesses face to face”); U.S.
Const. amend VI (that “[i]n all criminal prosecutions, the accused
shall enjoy the right ․ to be confronted with the witnesses against
Banks specifically questions the portion of the translation of Mr.
Atilebawi's testimony regarding Mr. Atilebawi's personal use of
marijuana. He insists that he had no way to challenge the
impartiality of the interpreter or the accuracy of the translation
because an Arabic language interpreter had not been assigned
specifically to the defense.
not critical to our evaluation of the arguments presented herein, it
is, nevertheless, a matter of at least some relevance to the
discussion of Mr. Ghanem as an interpreter that the overwhelming
majority of Mr. Atilebawi's examinations, both by the prosecution and
by the defense, required no translation. The examinations were
conducted in English, including the discussion of the actual offense
and identification of Mr. Banks as the perpetrator.
Sup.Ct. R. 42 cmt. states that two interpreters may be used in lengthy
proceedings to enable the interpreters to take breaks and to
facilitate attorney-client communications during a court proceeding.
Banks's brief uses the verb “poll” rather than the verb “interview.”
“Polling” the jury relates to questioning the jury after the verdict
as to whether they concur with the verdict. The context of the use
of the verb “poll” in Mr. Banks's brief indicates that the term
connotes interviewing the jury either before or after the verdict.
Accordingly, we have chosen to substitute the verb “interview” for “poll.”
Lovell v. McCullough, 222 Tenn. 567, 575-78, 439 S.W.2d 105, 108-10
(1969); Dixon Stave & Heading Co. v. Archer, 40 Tenn.App. 327,
334-40, 291 S.W.2d 603, 607-10 (1956); 6 Wayne R. LaFave et al.,
Criminal Procedure § 24.9(e), at 522-24 (3d ed.2007).
discussed below, this limitation applies to attempt and solicitation.
Act of May 24, 2001, ch. 338, 2001 Tenn. Pub. Acts 708, 709.
v. Page, 184 S.W.3d at 229.
the offense solicited did occur, ․ the defendant may not be convicted
of both the solicitation and the completed offense. The solicitation
is merged with the completed offense, and the offender may be guilty
of the completed offense under § 39-11-402.” Tenn.Code Ann.
§ 39-12-102 (1997) (Tenn. Sentencing Comm'n cmt.).
addition to charging the jury as to first degree premeditated murder,
the trial court also charged the jury as to facilitation of first
degree murder, murder in the second degree, facilitation of second
degree murder, voluntary manslaughter, facilitation of voluntary
manslaughter, and reckless homicide. With regard to the first degree
murder in the perpetration of a robbery count, the trial court also
charged the jury as to facilitation of first degree murder, second
degree murder, and reckless homicide. As for the charge of criminal
attempt to commit first degree murder, the trial court also charged
the jury with facilitation to commit attempted first degree murder,
attempted second degree murder, facilitation to commit second degree
murder, criminal attempt to commit voluntary manslaughter, and
facilitation to commit voluntary manslaughter. Finally, in addition
to charging the jury as to especially aggravated robbery, the trial
court also charged the jury as to especially aggravated robbery,
aggravated robbery, facilitation of aggravated robbery, robbery, and
facilitation to commit robbery.
Ann. § 39-13-202(d).
Ann. § 39-13-211 (1997).
State is mistaken on this point. In his amended motion for new trial,
Mr. Banks asserted that the trial court erred “in not providing a
curative instruction during the penalty phase correcting the
prosecutor's misstatements regarding mitigating factors during the
state's closing argument.”
United States Supreme Court has noted that argument between the
defendant and counsel for the Crown was an essential part of English
criminal trials. As other procedural protections developed, the
importance of argument was neither discarded nor diluted. Rather,
the primary function of argument shifted to summation of the evidence
at the close of the trial. Herring v. New York, 422 U.S. at 860-61,
95 S.Ct. 2550.
to closing arguments warrant reversal only in exceptional
circumstances. United States v. Smith, 508 F.3d 861, 864 (8th
Cir.2007). Accordingly, like the United States Court of Appeals for
the Eighth Circuit, “[w]e bear in mind that fleeting comments that
passed without objection during the rough-and-tumble of closing
argument in the trial court should not be unduly magnified when the
printed transcript is subjected to painstaking review in the
reflective quiet of an appellate judge's chambers.” United States v.
Mullins, 446 F.3d at 758.
Banks's brief states that “[t]he prosecutor improperly implied that
the jury should decide whether an aggravating circumstance deserves
any weight based upon whether the jury would then have to give other
aggravating circumstances any weight” (emphasis added). Based on the
substance and context of the argument, Mr. Banks was clearly referring
to “mitigating circumstances” rather than “aggravating circumstances.”
term “corpus delicti” is often confused for the “dead body.” Bryan
A. Garner, A Dictionary of Modern Legal Usage 226 (2nd ed. 1995) (“A
Dictionary of Modern Legal Usage ”). However, it refers to “[t]he
fact of a transgression” and will generally be established in a
criminal homicide case through the evidence of the death of the victim
joined with some evidence that the death resulted not from an accident
but a criminal act. Black's Law Dictionary 346 (7th ed.1999); A
Dictionary of Modern Legal Usage 226.
States v. High Elk, 442 F.3d 622, 626 (8th Cir.2006); Douglas A.
Berman & Stephanos Bibas, Making Sentencing Sensible, Ohio St. J.Crim.
L. 37, 52-54 (2006).
State v. Gomez, 239 S.W.3d at 739.
v. Carter, 254 S.W.3d 335, 343 (Tenn.2008).
Act of May 18, 2005, ch. 353, 2005 Tenn. Pub. Acts 788.
principles can be found in Tenn.Code Ann. §§ 40-35-102, -103 (2006 &
Supp.2007). The Tennessee General Assembly chose “Bookerization”
rather than “Blakelyization” when it replaced the formerly presumptive
guideline in favor of advisory guidelines. Stephanie Watson, Fixing
California Sentencing Law, 39 McGeorge L.Rev. 585, 593 n. 89 (2008) (hereinafter
“Watson”) (quoting Model Penal Code: Sentencing (Prelim. Draft.
No. 4 2005)). Tennessee was the first state in which the
legislature converted a former presumptive guidelines system into an
advisory system. Model Penal Code: Sentencing, Reporter's
Introductory Memorandum xxxvii & n. 19 (Tent. Draft No. 1 2007); Watson
at 593. In 2007, the California State Legislature also opted for
“Bookerization” rather than “Blakelyization.” Watson at 591-97.
Banks's lawyer questioned her client when the sentencing hearing began.
After discussing the “old sentencing law” and the “new sentencing
law,” she asked Mr. Banks “which law do you wish to go under?” He
responded, “[t]he new one.”
Banks acknowledged his understanding that he was not entitled to a
presumptive sentence when he agreed that his lawyer had “explained to
․ [him] that under the new sentencing law that the court is required
to start at the ․ minimum time in the range for the particular offense
as opposed to where they used to start at the middle of the range.”
Ann. § 40-35-114(1) (2006).
Ann. § 40-35-114(2).
Ann. § 40-35-114(6).
Ann. § 40-35-114(8)
Ann. § 40-35-114(13)(C).
Ann. § 40-35-114(14).
the brief filed in this Court, the State seeks to side-step its
concession in the Court of Criminal Appeals that the trial court
should not have considered the enhancement factors in Tenn.Code Ann.
§ 40-35-114(6), (14). This the State cannot do because of the
doctrine of judicial estoppel. See Marcus v. Marcus, 993 S.W.2d 596,
602 (Tenn.1999) (quoting Obion County v. McKinnis, 211 Tenn. 183, 186,
364 S.W.2d 356, 357 (1962)) (holding that “a party will not be
permitted to occupy inconsistent positions or to take a position in
regard to a matter which is directly contrary to, or inconsistent with,
one previously assumed by him”).
aggravating circumstance in Tenn.Code Ann. § 39-13-204(i)(6) arises
when “[t]he murder is committed for the purpose of avoiding,
interfering with, or preventing the lawful arrest or prosecution of
the defendant or another.”
aggravating circumstance in Tenn.Code Ann. § 39-13-204(i)(7) arises
when “[t]he murder was knowingly committed ․ by the defendant, while
the defendant had a substantial role in committing ․ any ․ robbery․”
Banks's precise words were “I tried to pull him away but he was too
heavy to move.”
Act of May 22, 1995, ch. 377, 1995 Tenn. Pub. Acts 587.
prior to this legislative amendment, Mr. Banks's argument would have
been unavailing for, as this Court indicated in State v. Hall, 958 S.W.2d
679, 692-93 (Tenn.1997), “application of the felony murder aggravating
circumstance is inappropriate only if the defendant is convicted
solely on the basis of felony murder. Implicit in that statement is
the recognition that the circumstance properly may be applied if a
defendant is convicted of premeditated first degree murder.” See
also Carter v. State, 958 S.W.2d 620, 624-25 (Tenn.1997); State v.
Price, 46 S.W.3d 785, 826-27 (Tenn.Crim.App.2000).
asserts that all the challenged provisions “[e]xcept where otherwise
noted,” violate U.S. Const. amend. V, VI, VII, and XIV.
he asserts that the challenged provisions “[e]xcept where otherwise
noted,” violate Tenn. Const. art. I, §§ 8, 9, 16, 17 and Tenn Const.
art. II, § 2.
generally Joan E. Jacoby, The American Prosecutor: A Search for
Identity 47 (1980); William T. Pizzi, Understanding Prosecutorial
Discretion in the United States: The Limits of Comparative Criminal
Procedure as an Instrument of Reform, 54 Ohio St. L.J. 1325, 1337-40
(1993); Kevin K. Washburn, American Indians, Crime, and the Law, 104
Mich. L.Rev. 709, 725-29 (2006).
W. Miller, Prosecution: The Decision to Charge a Suspect With a Crime
e.g., Castaneda v. Partida, 430 U.S. 482, 495-96, 97 S.Ct. 1272, 51
L.Ed.2d 498 (1977); Turner v. Fouche, 396 U.S. 346, 358-59, 90 S.Ct.
532, 24 L.Ed.2d 567 (1970).
e.g., Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 987, 108 S.Ct.
2777, 101 L.Ed.2d 827 (1988); Bazemore v. Friday, 478 U.S. 385,
400-01, 106 S.Ct. 3000, 92 L.Ed.2d 315 (1986) (Brennan, J., concurring
in part); Int'l Bhd. of Teamsters v. United States, 431 U.S. 324,
337-42, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977).
“Baldus studies” at issue in McCleskey v. Kemp consisted of two
statistical studies examining over 2,000 murder cases that occurred in
Georgia during the 1970s. These studies suggested that black
defendants who kill white victims had the greatest likelihood of
receiving the death penalty. McCleskey v. Kemp, 481 U.S. at 286-87,
107 S.Ct. 1756. The United States District Court found the studies'
methodology flawed and declined to consider them. The United States
Court of Appeals assumed that the Baldus studies showed racial
disparities in the imposition of the death penalty in Georgia. The
United States Supreme Court did not address the studies' methodology.
Banks makes specific reference to a “nationwide study published in the
Dallas Times Herald, June 17, 1985,” information compiled by the NAACP
and found on the Death Penalty Information Center's website, and a
1990 Report of the General Accounting Office to the House and Senate
analysis of crime and conviction data indicates that the difference
between the number of men and women sentenced to death can be
attributed to non-discriminatory factors. There is, for example, a
significant variance between the number of murders committed by men
and the number of murders committed by women. Lawrence M. Friedman,
Dead Hands: Past and Present in Criminal Justice Policy, 27 Cumb.
L.Rev. 903, 911 (1996-1997); David McCord, Imagining a Retributivist
Alternative to Capital Punishment, 50 Fla. L.Rev. 1, 123 n. 459
(1998). Similarly, there is a well-documented variance between the
types of murders generally committed by men and those generally
committed by women. Elizabeth Rapaport, Equality of the Damned: The
Execution of Women on the Cusp of the 21st Century, 26 Ohio N.U. L.Rev.
581, 582-83 (2000); Elizabeth Rapaport, The Death Penalty and Gender
Discrimination, 25 Law & Soc'y Rev. 367, 369-74 (1991); Victor L.
Streib, Gendering the Death Penalty: Countering Sex Bias in a
Masculine Sanctuary, 63 Ohio St. L.J. 433, 459 (2002); see also
Lawrence A. Greenfeld & Tracy L. Snell, Bureau of Justice Statistics
Special Report Women Offenders 4 (Revised 2000), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/wo.pdf
(last visited Oct. 15, 2008).
C. Darnell, Tennessee Blue Book 2007-2008 641 (2008) (reporting data
collected by the United State Census Bureau's 2000 census).
information is available through a review of the annual Crime in
Tennessee reports available from the Tennessee Bureau of Investigation
Statistical Analysis Center, available at http://www.tbi. state.tn.
us/divisions/isd_csu_sac.htm (last visited Oct. 17, 2008). The
date for the period from 2001 through 2007 shows that 39.2% of the
murders reported in Tennessee in 2001 occurred in Shelby County;
38.5% in 2002; 34.3% in 2003; 30.9% in 2004; 33.7% in 2005; 36.7%
in 2006; and 34.9% in 2007.
data for the period from 2001 through 2007 shows that 71.1% of the
murders reported in Tennessee in 2001 occurred in Davidson, Hamilton,
Knox, Madison, Shelby, and Sullivan Counties; 69.8% in 2002; 67.0%
in 2003; 62.6% in 2004; 72.6% in 2005; 71.9% in 2006; and 68.9% in
homicides reported in these six counties exceeded 70% of the total
number of homicides reported statewide in 2001, 2005, and 2006.
2001 and 2007, the average percentage of the reported homicides in
these six counties was 69.1% of the statewide total.
also note that the United States Supreme Court has declined to
invalidate a substantially similar execution protocol that was
challenged on essentially the same grounds. Baze v. Rees, ---U.S.
----, ----, 128 S.Ct. 1520, 1528, 170 L.Ed.2d 420 (2008).
Dep't of Corr., Report on Administration of Death Sentence in
Tennessee (Apr. 30, 2007), available at Workman v. Breedesen, 486 F.3d
896, 913-921 (6th Cir.2007) (Appendix A); see also State v. Payne,
No. M1988-00096-SC-DPE-DD, (Tenn. Oct. 22, 2007) (order), available at
http:// www.tsc.state.tn.us/OPINIONS/ TSC/CapCases/Payne/20071022/Payne%
20Pervis% 20Order% 2010-22-07.pdf.
2. It is
undisputed that, during the course of the Appellant's representation,
certain reassignments in the Public Defender's Office resulted in
Attorney Thackery being relieved from this case. Attorney White was
appointed in her place. Prior to trial, Attorney White was relieved,
resulting in the appointment of Attorney Kent.
WILLIAM C. KOCH, JR., J.
Devin Earl Banks