Banks v. State

• Citation: 919 So.2d 1223
• Decision Date: 18 March 2005
• Docket Number: No. CR-03-1966.,CR-03-1966.
• Parties: Tellis BANKS v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

919 So.2d 1223

Tellis BANKS v. STATE of Alabama.

No. CR-03-1966.

Court of Criminal Appeals of Alabama.

March 18, 2005.

Patrick C. Craddock, Alexander City, for appellant.

Troy King, atty. gen., and Jack W. Willis, asst. atty. gen., for appellee.

WISE, Judge.

Tellis Banks was indicted for two counts of capital murder, violations of §§ 13A-5-40(a)(17) and 13A-5-40(a)(18), Ala.Code 1975, and one count of discharging a weapon into an occupied vehicle, a violation of § 13A-11-61, Ala.Code 1975. The jury convicted Banks of two counts of intentional murder, as lesser offenses included in the capital-murder charges, and one count of discharging a weapon into an occupied vehicle. The trial court sentenced Banks to 40 years' imprisonment for each of the murder convictions and to 20 years' imprisonment for the discharging-a-weapon conviction, and ordered that the sentences run concurrently.

Banks does not contend that the State failed to establish a prima facie case. Therefore, a brief rendition of the facts will suffice. Banks and other individuals were involved in a drug-related feud in 2000, which resulted in an exchange of gunfire on more than one occasion. On October 18, 2000, Banks and some friends were at Mattie Bledsoe's house in Chambers County when two individuals in a Honda Accord automobile sped by Bledsoe's house and fired several shots into the house. Banks and his friends — Brandon Bledsoe, John Bledsoe, and Ira Bledsoe — got into Banks's truck and pursued the Honda Accord, but they lost sight of it. After losing sight of the Honda Accord, Banks and his friends came upon another automobile, a Dodge Colt, which, according to Banks, had also been involved in the drive-by shooting at the Bledsoe residence. Banks and John Bledsoe began firing their weapons at the vehicle. Charlie Carter got out of the vehicle and was shot in the chest; Carter died as a result of the injuries he received. Banks and the Bledsoes disposed of the weapons they used. Banks was arrested the next day, and he confessed to his involvement in the shooting and killing of Carter.

I.

Banks first contends that his two murder convictions and resulting sentences violated the Fifth Amendment's prohibition against double jeopardy and Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Banks argues that because the convictions arise out of a single incident and involve a single victim, he could be convicted and sentenced for only one count of intentional murder. The State agrees, noting that the trial court erroneously sought to remedy the double-jeopardy violation by sentencing Banks to concurrent prison terms.¹

Banks was indicted in separate counts of a single indictment for capital murder. Under count I, Banks was indicted for killing Charlie Carter with a firearm, while Carter "was inside a vehicle," in violation of § 13A-5-40(a)(17). Under count II, Banks was indicted for killing Charlie Carter with a firearm, which Banks discharged "within or from a vehicle," in violation of § 13A-5-40(a)(18). (C. 11.) The jury was provided with a jury-verdict form that allowed it to find Banks "guilty of Capital Murder as charged in Count I of the indictment (Murder while Shooting Into An Occupied Vehicle)," "guilty of Capital Murder as charged in Count II of the indictment (Murder while Shooting From An Occupied Vehicle)," "guilty of Murder" or "guilty of Manslaughter" under both counts, or "not guilty" under both counts. The jury found Banks "guilty of Murder" under count I and "guilty of Murder" under count II. (C. 125-26.)

Banks and the State agree that the jury convicted Banks for two counts of intentional murder under § 13A-6-2(a)(1), Ala. Code 1975, based upon the trial court's instructions to the jury. Under § 13A-6-2(a)(1), "[a] person commits the crime of murder if ... [w]ith intent to cause the death of another person, he causes the death of that person or of another person."

In Ex parte Robey, [Ms. 1031442, Dec. 3, 2004] ___ So.2d ___ (Ala.2004), the Alabama Supreme Court recently addressed a similar situation. Robey was convicted of one count of reckless murder and two counts of first-degree assault. Robey argued on appeal that he could not be convicted of two counts of first-degree assault because there was only one victim and because the injuries to the victim arose out of the same event. The convictions were the result of Robey's, while intoxicated, driving head-on into a vehicle in which the victims were passengers. One of the victims, Reese, was killed; the other victim, McNabb, was seriously injured. Id. at ___.

The State prosecuted Robey under two separate subsections of § 13A-6-20(a), Ala.Code 1975, for assaulting McNabb. The State conceded that one of the counts was due to be dismissed. The Alabama Supreme Court agreed and stated:

"We conclude that the offense of first-degree assault under § 13A-6-20(a)[, Ala.Code 1975,] `may be committed by several different methods, and the State may allege and prove any one or all of those various methods in its attempt to establish the defendant's guilt.' [Ex parte] Rice, 766 So.2d [143,] 150 [(Ala. 1999)]. We have found no indication that the Legislature intended to impose multiple punishments under the separate subsections of § 13A-6-20(a) when the actions described in each of those subsections are based on the same conduct of the accused, as well as the same injuries to the same victim. Therefore, punishing Robey twice for the same offense — first-degree assault — violated his double-jeopardy rights."

Id. at ___. See also Craig v. State, 893 So.2d 1250, 1256 (Ala.Crim.App.2004)(holding that defendant could not be convicted for two counts of robbery where robbery of dry-cleaning clerk, though occurring twice, was part of "one continuous act of robbery").

However, in Ex parte Peraita, 897 So.2d 1227, 1236 (Ala.2004), the Supreme Court held that Peraita could be convicted of two counts of capital murder for the killing of a single victim. Peraita, an inmate at Holman Prison, killed a fellow inmate. The State indicted Peraita under two separate provisions of the capital-murder statute, § 13A-5-40(a)(6), Ala.Code 1975, "which classifies as a capital offense `[m]urder committed while the defendant is under sentence of life imprisonment,'" and § 13A-5-40(a)(13), Ala.Code 1975, "which classifies as a capital offense `[m]urder by a defendant who has been convicted of any other murder in the 20 years preceding the crime.'" Id. at 1230. In affirming both convictions, the Alabama Supreme Court wrote:

"The State charged Peraita with two counts of capital murder for the death of one individual. Peraita argues that this `double charging' violated his right not to be subjected to double jeopardy.

"Peraita argues that both state and federal law prohibit a state from subjecting a defendant to double jeopardy, and that the indictment charging him sought to exact `multiple prosecutions' for the same offense. Blockburger v. United States, 284 U.S. 299 (1932).

"The Blockburger test is aimed at, among other things, `"multiple punishments imposed in a single prosecution."' Grady v. Corbin, 495 U.S. 508, 516-17 (1990) (quoting Garrett v. United States, 471 U.S. 773, 778 (1985)). Peraita argues that conviction of two counts of capital murder for the killing of a single person constitutes such multiple punishment. He cites Meyer v. State, 575 So.2d 1212 (Ala.Crim.App.1990), and Ex parte Rice, 766 So.2d 143 (Ala.1999), for the proposition that multiple charges from the same statute violate double-jeopardy principles.

"The defendant in Meyer was charged with capital murder and indicted for three counts of capital murder for the killing of one person. His indictment alleged that he committed the murder while committing robbery of three separate items. The Court of Criminal Appeals held that these three allegations were merely three `"alternative methods of proving the same crime, and therefore, did not constitute separate offenses."' Meyer, 575 So.2d at 1217 (quoting Sisson v. State, 528 So.2d 1159, 1162 (Ala.1988)).

"In Rice, the defendant was charged with two counts of capital murder for the killing of one individual during a robbery and a kidnapping; he was convicted of two counts of `the crime of murder' under Ala.Code 1975, § 13A-6-2(a)(3), specifically the lesser-included offense of felony murder. This Court held that, much like Meyer and Sisson, each count in Rice was an alternative method of proving but a single crime.

"In contrast to Meyer and Rice, the two capital-murder charges against Peraita are separate offenses. Each count of capital murder is a separate offense, as shown by the beginning of the statute defining capital offenses, which provides, `The following are capital offenses.' Ala. Code 1975, § 13A-5-40(a). So long as each count of the crime concerns a separate offense, as opposed to a separate method of proving that offense, the double-jeopardy provision of the United States Constitution is not implicated. We hold that Peraita's right to be free from double jeopardy was not violated by his having been tried and convicted of two counts of capital murder for the killing of one individual."

Id. at 1236.

The Supreme Court cited Ex parte Rice, 766 So.2d 143 (Ala.1999), in both Robey and Peraita. The facts of the case currently before us are strikingly similar to those in Rice. The defendant in Rice was indicted for two counts of capital murder — for murder-kidnapping under § 13A-5-40(a)(1) and for murder-robbery under § 13A-5-40(a)(2). He was convicted of two counts of the lesser-included offense of felony murder, pursuant to § 13A-6-2(a)(3). "The jury specifically found Rice guilty of a felony murder committed during a kidnapping and of a felony murder committed during a robbery." Rice, 766 So.2d at 145. The Supreme Court determined that the defendant could not be convicted for two counts of felony murder. The Court stated:

"The language used by the...