Banks v. State

• Court: Florida Supreme Court
• Writing for the Court: PER CURIAM.
• Citation: Banks v. State, 219 So.3d 19 (Fla. 2017)
• Decision Date: 20 April 2017
• Docket Number: No. SC15–297,No. SC14–979,SC14–979,SC15–297
• Parties: Donald Lenneth BANKS, Appellant, v. STATE of Florida, Appellee. Donald Lenneth Banks, Petitioner, v. Julie L. Jones, etc., Respondent.

219 So.3d 19

Donald Lenneth BANKS, Appellant,

v.STATE of Florida, Appellee.

Donald Lenneth Banks, Petitioner,

v.Julie L. Jones, etc., Respondent.

No. SC14–979

No. SC15–297

Supreme Court of Florida.

[April 20, 2017]

Rick A. Sichta, Susanne K. Sichta, and Joe Hamrick of The Sichta Firm, LLC., Jacksonville, Florida, for Appellant/Petitioner

Pamela Jo Bondi, Attorney General, and Carine L. Mitz and Robert J. Morris, III, Assistant Attorneys General, Tallahassee, Florida, for Appellee/Respondent

PER CURIAM.

Donald Lenneth Banks appeals the denial of his motion to vacate his conviction of first-degree murder and sentence of death filed under Florida Rule of Criminal Procedure 3.851 and petitions this Court for a writ of habeas corpus. For the reasons that follow, we affirm the denial of his postconviction guilt phase claims, deny his habeas petition, but vacate his death sentence, and remand for a new penalty phase.¹

I. BACKGROUND

Donald Lenneth Banks was convicted and sentenced to death for the 2005 murder of Linda Volum. This Court's opinion on direct appeal included the following regarding the murder and Banks' subsequent trial:

During the late evening hours of March 9 or the early morning hours of March 10, 2005, the Victim was stabbed to death. The killing probably occurred between midnight and 4:00 a.m. on March 10, 2005. The Victim received fourteen knife wounds, one to the neck, ten to the chest or abdomen, and three to her left forearm and hand. She also received abrasions and contusions in different areas of her body, especially around the hands and to the top of the head. She further received several small cuts in different areas, including the back of the hand and around the left eye. At least six of the wounds were hard stabs from a knife, rather than simple jabs, in that they penetrated the Victim's ribs or sternum. One stabbing penetrated her liver, two or three penetrated her heart, and one penetrated her lung. The Victim attempted to defend herself against this attack, and was conscious and aware throughout the attack. She ultimately died from a loss of blood due to the stab wounds to her heart.

Between 2:40 and 2:47 a.m. on the same day, then, a person attempted to access an automatic teller machine with the Victim's ATM card. This event was recorded by a video surveillance camera. Though the face of the person was not revealed in the recording, it was clearly a black male wearing a unique shirt, and jacket, visually identical to the ones [Banks] was wearing that night. ( [Banks] is also a black male). Furthermore, this person was driving a white, compact sedan which matched the description of the Victim's automobile. The person was accompanied to the ATM location by another, still unidentified person.

Before dawn on the same morning, then, [Banks] returned to a residence he shared with his girlfriend, one Sudi[e] Johnson ("Johnson"). He had been away from the residence all night. He was driving a vehicle which appeared to be identical to that of the Victim. He entered the home limping, from a wound to his leg. He carried with him a pillowcase the same color as another pillowcase found later that day in the Victim's home. Within the pillowcase, he carried bloody underclothing, and the Victim's laptop computer. When Johnson asked him about the bloody clothing, [Banks] told her that "I just murked somebody." The word "murk" is a slang term meaning murder. [Banks] had been bleeding from the wound to his leg, and continued to bleed while he was at the residence. However, about an hour after his arrival, he again departed in the same automobile in which he had arrived.

Later the same morning the Victim's automobile was involved in a traffic accident. After the accident, the occupants of the vehicle fled from the scene. Deputy sheriffs investigating the accident, though, were able to ascertain that it was owned by the Victim. In the course of investigating the accident, then, a deputy went to the Victim's residence, where he found her dead body.

About a day and a half after the foregoing events, Johnson took [Banks] to a hospital so that he could receive medical care for his leg wound. The wound subsequently proved to be almost visually identical to one of the wounds the Victim had received during the murder.

Johnson testified at trial that when [Banks] initially told her he had murdered someone, she did not believe him. She thought he was simply seeking attention. However, several days later she and [Banks] were watching a videotaped television program when a news flash was aired regarding the murder of Linda Volum. [Banks] then stated to Johnson "You see that?" and "I did that." These remarks led Johnson to question [Banks] about the murder. In response, he related to her facts about the crime which could only have been known by someone who was present at the murder, or sheriff's investigators. He also told her that he had committed the crime as a "murder pay-back," and that he had done so after entering the Victim's residence in only his underclothing. He further said that when he left the residence "I had set the house up as a prop." He explained that he had done so by putting a crack pipe in the residence, to make the murder appear to be "foul play." [Banks] related [to Johnson] that he had received the wound to his leg on the night in question by accidentally stabbing himself in the course of stabbing the Victim to death.

The sheriff's office investigation of the crime scene produced substantial physical evidence of [Banks'] guilt. Indeed, a crack pipe, along with a knife, was found under the Victim's body. Blood, which DNA testing proved to be [Banks'], was found in several places in the house. [Banks' semen] was found on the Victim's body, and a mixture of blood from both [Banks] and the Victim was found near the body. [Banks'] bare footprint was also found in some blood in the house. In addition, the [prints] of some unknown person [were] found in blood in one place, indicating that another person may have been present at the murder, besides [Banks]. That person has never been identified.

During the guilt phase, Banks maintained his innocence. He testified that he sold crack out of Volum's residence and that Volum had exchanged sex as well as the use of her laptop and vehicle for crack. Banks stated that during the evening of Volum's murder he had cut his fingers on a crack pipe, thereby explaining his blood in Volum's residence. He also testified that Volum had asked him to go to the ATM for her and that an acquaintance, "Bo," accompanied him on the trip. He stated that when he left that night to go home "Bo" remained at Volum's residence. However, the jury found Banks guilty of first-degree murder.

The defense, during the penalty phase, presented the testimony of Banks' father and a forensic psychologist. Banks' father testified that he had not been a part of his son's life since his son was seven years old. The psychologist testified that there was no evidence of any major mental illnesses or thought disorders. However, testing suggested mild to moderate deficits in frontal lobe functioning, which is responsible for planning, problem solving, and impulse control. The psychologist diagnosed him with a cognitive disorder not otherwise specified as well as antisocial personality disorder. Moreover, the psychologist noted a history of alcohol and substance abuse.

The jury recommended the death penalty by a vote of ten to two, and a Spencer [v. State , 615 So.2d 688 (Fla. 1993),] hearing was held on August 6, 2008. Thereafter, following the jury's recommendation and concluding that the aggravating circumstances outweighed the mitigating circumstances, the trial court sentenced Banks to death. In so doing, the trial court found the following aggravators: (1) Banks had been previously convicted of violent felonies (very great weight); (2) the crime was especially heinous, atrocious, or cruel (very great weight); and (3) the crime was committed in a cold, calculated, and premeditated manner (great weight). The trial court found the following mitigators: (1) Banks has a low IQ (very little weight); (2) Banks has a deficit in his brain (moderate weight); (3) Banks has antisocial personality traits (little weight); (4) Banks was not the only participant in the crime (no weight); and (5) Banks had a difficult youth (little weight).

Banks v. State , 46 So.3d 989, 992–94 (Fla. 2010) (footnotes omitted) (quoting sentencing order).

On direct appeal, this Court affirmed Banks' conviction and sentence, rejecting the following claims: "(A) the trial court erred in denying a cause challenge to a prospective juror whose daughter had been the victim of an armed robbery; (B) the trial court erred in allowing the State to exercise peremptory challenges against two African–Americans; (C) the trial court erred in admitting DNA results without requiring the presentation of statistical evidence; (D) the trial court erred in denying a motion for mistrial when a witness mentioned Banks' involvement in another crime; (E) the trial court erred during the penalty phase by allowing the State to present a video of Banks committing an armed robbery; and (F) the trial court erred in finding the cold, calculated, and premeditated (CCP) aggravating circumstance." Id. at 994–95.

After holding an evidentiary hearing, the postconviction court denied Banks' initial 3.851 motion. This appeal and petition for habeas relief followed.

II. ANALYSIS

A. Consent to Search

First, Banks claims that trial counsel was ineffective for failing to move to suppress items recovered after a second entry of the residence shared by Banks and Sudie Johnson based upon Ms. Johnson's alleged coerced consent to search. However, because the claim is without merit, trial counsel cannot be deemed ineffective for failing to raise it.

Following the United States Supreme Court's decision in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), this Court has...