Banks v. State
| Decision Date | 30 April 1992 |
| Docket Number | No. S92A0300,S92A0300 |
| Citation | 262 Ga. 190,415 S.E.2d 634 |
| Parties | BANKS v. The STATE. |
| Court | Georgia Supreme Court |
Megan DeVorsey, Atlanta, for Banks.
Lewis R. Slaton, Dist. Atty., Michael J. Bowers, Atty. Gen., Nancy A. Grace, Asst. Dist. Atty., Susan V. Boleyn, Sr. Asst. Atty. Gen., Atlanta, for the State.
Mary H. Hines, Staff Atty., Atlanta.
The appellant, Angelo Bernard Banks, was convicted of the malice murder of Brenda Louise Wheeler and sentenced to life imprisonment. Additionally Banks was convicted of the burglary of the victim's residence, for which he received a twenty-year consecutive sentence. 1
The record in this case shows that the victim was bound, stabbed, and beaten in the head with a hammer during a burglary of her home. The appellant's fingerprints were found on the window through which entry to the house had been gained, and on the meter box which had been removed to cut off power to the house. Additionally, the appellant's fingerprints were discovered throughout the victim's home.
A police search of the appellant's home, made pursuant to a search warrant, uncovered a stereo turntable which belonged to the victim. A VCR belonging to the victim was discovered during the search of a car belonging to appellant's girlfriend. Fibers from the appellant's clothing were consistent with fibers found on the victim. The appellant's accomplice, Mario Mack, testified for the state that he acted as a lookout during the burglary. He further testified that when he saw the victim drive up to the house, he ran away. According to Mack, the appellant later stated that he had tied the victim up, but that he did not kill her.
1. Construed in the light most favorable to the prosecution, a rational trier of fact could find the appellant guilty beyond a reasonable doubt of the crimes charged. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. At the time of her death, the victim was estranged from her husband, Charles Wheeler. Six months after the murder, a woman filed a petition for divorce against Charles Wheeler, seeking the dissolution of their common-law marriage. In this petition Wheeler's common-law wife alleged that he was physically abusive and addicted to drugs.
At his trial appellant sought to admit this petition for divorce, arguing that it tended to show that Charles Wheeler had a violent nature and thus could have murdered the victim. The appellant maintained that Wheeler's common-law wife could not be located to testify. The trial court excluded the document on the ground that it contained hearsay. On appeal, appellant argues that the exclusion of this document prejudiced his defense.
This allegation was, at best, of marginal relevance, and was clearly subject to rejection by the trial court in the exercise of its sound legal discretion. See generally, Strong, McCormick on Evidence (4th Edition, 1992), § 185, pp. 782-783. It was equally within the trial court's discretion to conclude that this hearsay did not meet the "necessity" test. Compare Higgs v. State, 256 Ga. 606, 351 S.E.2d 448 and Mallory v. State, 261 Ga. 625, 409 S.E.2d 839 (1991).
3. The trial court's charge to the jury on the appellant's election not to testify at trial was not error. The trial court's failure to charge the exact language requested is not a ground for reversal, as the charge given substantially covered the principles of the requested charge. Myers v. State, 260 Ga. 412, 313, 395 S.E.2d 811 (1990).
4. The search warrant obtained for appellant's premises authorized police to search for "blood stains, clothes ..., an ice pick ... and any other tangible evidence of murder." During the search officers found a stereo turntable belonging to the victim under the appellant's bed. Appellant maintains this evidence should have been suppressed because it was outside the scope of the search warrant.
The record shows that the victim's house was "ransacked" when the victim's body was discovered. At the time the search warrant was sought it was not clear what items had been taken from the victim's home. During the search of appellant's premises, officers recognized the turntable as a matching component of the victim's stereo system.
An officer conducting a lawful search is not precluded from seizing tangible evidence of the...
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...evidence of the commission of a crime even though that evidence is not specifically listed in the search warrant." Banks v. State, 262 Ga. 190, 192(4), 415 S.E.2d 634. " 'It is not necessary under the law that the officer know with certainty that the item is stolen at the time of the seizur......
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