Banks v. State

• Decision Date: 09 August 2002
• Citation: 845 So.2d 9
• Parties: Medell BANKS, Jr. v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

845 So.2d 9

Medell BANKS, Jr. v. STATE of Alabama.

CR-01-0310.

Court of Criminal Appeals of Alabama.

August 9, 2002.

Rehearing Denied September 20, 2002.

James D. Evans, Butler; Joseph W. Hutchinson III, Butler; and Richard J. Riley, Birmingham, for appellant.

William H. Pryor, Jr., atty. gen., and E. Vincent Carroll, deputy atty. gen., for appellee.

COBB, Judge.

Introduction

On May 7, 2001, Medell Banks entered a "best interest" plea to manslaughter, a violation of § 13A-6-3(a)(1), Ala.Code 1975.¹ On June 25, 2001, the trial court sentenced Banks to 15 years in prison.² This appeal arises from the trial court's denial, after an extensive evidentiary hearing,³ of Banks's motion to withdraw his guilty plea.

The facts in this case are disputed. Banks's wife, Victoria Banks, was serving time in jail following a conviction on charges unrelated to the instant case. In February 1999, while still in jail, Victoria told authorities that she was pregnant. On February 25, 1999, the sheriff allowed her to visit Dr. Katherine Hensleigh. Victoria told the doctor she was pregnant, and the records of the visit indicate that a fetal heartbeat was heard. Victoria visited the doctor again a month later, still maintaining that she was pregnant, and the records of that visit indicate a fetal heartbeat was again heard. Subsequently, Victoria told the sheriff that she wanted to be released from jail to have the baby; she threatened to sue because she was not receiving prenatal care while she was in jail. (R. 344.)

On May 14, 1999, Victoria was released from jail. On August 3, 1999, approximately two months after the baby should have been delivered (R. 265), the sheriff encountered Victoria in town and asked her about the baby. Victoria claimed to have had a miscarriage. On that same day, the sheriff escorted Victoria to Dr. Hensleigh's office, where a nurse examined Victoria and determined that there was no evidence of any retained products of conception.

Banks was taken into custody on August 6, 1999. He, Victoria, and her sister, Diane Tucker, were interrogated several times about the alleged pregnancy.⁴

As an explanation for Victoria's change in condition, the prosecution maintained that, on or about June 16, 1999 (C. 463), Banks, Victoria, and her sister participated in the smothering or live burial of a baby born to Victoria that evening. The State based its case on incriminatory statements allegedly made by Banks;⁵ on Banks's voluntarily escorting officers on two occasions to the area where he said he had left the baby in a hole, to no avail; on Victoria's twice telling Dr. Hensleigh, who attended to her while she was in jail, that she was pregnant; on Dr. Hensleigh's having heard a fetal heartbeat during both of Victoria's visits; on Victoria's telling the sheriff that she was pregnant; on Victoria's statements to two women who ministered to her in jail regarding her pregnancy; and on a forensic report that a drop of blood found on a couch in an abandoned mobile home contained DNA from a female "and most probably originated from a close female relative of Victoria Banks." (C. 86.)⁶ As for motive, the State alleged that Banks was angry because he was not the father of the alleged baby, and that Victoria's boyfriend, who had been convicted of raping Banks's 10-year-old stepdaughter, was the father of the baby.

Before Banks entered the guilty plea, it was the defense's position that Victoria had had a tubal ligation⁷ in 1995 and that she could not have given birth at the time of the alleged crime. The defense argued that Banks, who had a verbal IQ of 57, gave his statements under the duress of intense and prolonged interrogation without the aid of counsel.

The State in turn argued that, although Victoria had had a tubal ligation, the procedure had failed, and she was therefore able to, and did, become pregnant in 1998. The State relied on Dr. Katherine Hensleigh's testimony that she believed that Victoria had been pregnant because, when she examined Victoria in February and March 1999, she twice heard a fetal heartbeat and she measured her fundal height to be 24 centimeters.⁸

At his guilty plea proceedings, Banks disputed the factual basis relied upon by the State. (R. 15.) Banks maintained his innocence, stating:

"Your Honor, I don't think I have been treated fairly. I got a son out there I love, I want to be with the rest of my life, do what I can to be with him, show him all the love, respect I can. For this here, I don't think I been treated fairly.

"And it hurts me in my heart to get time for something I didn't do. I wasn't there. I don't know nothing about nothing."

(R. 83.)

Subsequent to the guilty plea proceedings, but before the sentencing proceedings, Banks's trial counsel acquired Victoria's consent to submit to an examination called a hysterosalpingogram (hereinafter "HSG") in order to determine whether the tubal ligation had been effective. At the sentencing hearing, Banks filed a motion for a medical examination of Victoria. The trial court granted this motion on the same day.

As described by Dr. Michael Steinkampf,⁹ the physician who performed the HSG on Victoria, the test involved the following:

"What you do is, you inject dye, a dye that blocks x-rays, up through the cervix into the uterine cavity and see if it comes out the tubes. There's different ways to inject the dye. What we use is a special catheter, cannula, shaped like a plastic acorn, fits tightly against the outside of the cervix. It's got a little straw that extends up into the uterine cavity.

"Then you inject the dye. As you inject, you're taking x-rays, sort of like an x-ray TV, really, that you're watching as the dye goes up into the uterine cavity. And then you can take still photos of it or static x-rays as you're doing this procedure.

"... First you put a speculum in, that's something you put into the vagina to open it up. And put a clip on the cervix. What we do at our clinic, we put a speculum in, then irrigate the vagina with an antiseptic to minimize the risk of infection. Then put a little bit of lidocaine or numbing medicine, a local anesthetic on the cervix, then grasp it with a grasper, it's called a tenaculum, a single tooth tenaculum. And then put that particular acorn with the little straw on the end up through the cervix. You actually attach it to the clip, to the tenaculum. Then you have the syringe on the other end and you inject the dye."

(R. 115-16.)

The HSG was performed on July 12, 2001. The test revealed that Victoria's fallopian tubes were in fact completely occluded, that is, blocked, as of the date of the examination. Based on the results of the test, on July 16, 2001, Banks filed a motion to withdraw his guilty plea, or in the alternative, for a new trial. On July 18, 2001, Banks filed an amendment to the motion. On August 20, 2001, the trial court conducted an evidentiary hearing on the motion. On September 7, 2001, Banks filed a memorandum in support of his motion to withdraw his guilty plea, to which the State responded on September 17, 2001.

In its answer to Banks's motion to withdraw his guilty plea and during the evidentiary hearing, the State maintained that, although Victoria's tubes were shown to be blocked in July 2001, her tubes were clear in the summer of 1998 and she was able to, and did, become pregnant. The State maintained that the blockage detected in July 2001 resulted from a venereal disease and occurred subsequent to the pregnancy.

On September 28, 2001, the trial court issued an order denying Banks's motion to withdraw his guilty plea. That order stated, in pertinent part:

"This Court treats the Defendant's motion as a motion for new trial under Rule 24 of the Alabama Rules of Criminal Procedure. It should be noted from the outset that it is not this Court's duty to decide whether or not Victoria Banks was ever pregnant. That is a question of fact which is to be decided by a jury. Of course, a jury was never given the opportunity to decide this issue as the Defendant pled guilty and in so doing waived his right to a jury trial. The sole issue before: this Court is, therefore, whether or not the Defendant should be granted a new trial because of newly discovered evidence. Alabama law sets out the requirements that must be met in order to obtain a new trial based on newly discovered evidence. To establish a right to a new trial based on newly discovered evidence, the Defendant must show the following: (1) that the evidence will probably change the result if a new trial is granted; (2) that the evidence has been discovered since the trial; (3) that it could not have been discovered before the trial by the exercise of due diligence; (4) that it is material to the issue; and (5) that it is not merely cumulative or impeaching. Ex Parte Heaton, 542 So.2d 931 (Ala.1989). In the opinion of this Court, it is this first element which is primarily in dispute, and it is this element that has not been met by the Defendant.

"The focus of the Defendant's motion centers around the testimony of Doctor Michael P. Steinkamp[f] who testified that a hysterosalpingogram was performed on Victoria Banks, which test reflected that a bi-lateral tubal ligation had been performed on Ms. Banks in 1995 and that, in his opinion, the tubal ligation procedure was effective and pregnancy could not have occurred subsequent to the tubal ligation. Unquestionably, this testimony is important and significant. However, under Rule 24 of the Alabama Rules of Criminal Procedure, this Court cannot say that had this test been presented to the jury that `the result probably would have been different.' It must be noted that there has been presented to this Court substantial testimony that the codefendant, Victoria Banks, was in fact pregnant. Doctor Katherine Hensleigh, a well-respected local family practitioner, testified that on two separate occasions she performed an examination of Victoria Banks. Her examination

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