State Carolina v. Banks

• Decision Date: 01 March 2011
• Docket Number: No. COA09–1150.,COA09–1150.
• Citation: 706 S.E.2d 807
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolinav.Brian Keith BANKS.

706 S.E.2d 807

STATE of North Carolina

v.Brian Keith BANKS.

No. COA09–1150.

Court of Appeals of North Carolina.

March 1, 2011.

OPINION TEXT STARTS HERE

Appeal by defendant from judgment imposing a sentence of life imprisonment without the possibility of parole entered by Judge Mark E. Powell on 23 February 2009 in Buncombe County Superior Court. Heard in the Court of Appeals 24 February 2010.

Roy Cooper, Attorney General, by Special Deputy Attorney General Jonathan Babb, for the State.

Parish, Cooke & Condlin, by James R. Parish, Fayetteville, for the defendant-appellant.

STEELMAN, Judge.

Where the State produced substantial circumstantial evidence supporting each essential element of the offense and that defendant committed the offense, the trial court did not err in denying defendant's motion to dismiss based upon the sufficiency of the evidence. Constitutional issues, which are not raised at trial, will not be considered for the first time on appeal. A party may impeach its own witness where the witness admitted making a prior handwritten statement and testified that she could not remember making certain parts of the statement. The jury is presumed to follow the trial court's instructions on its consideration of evidence. The use of another's statement to explain the subsequent conduct of a person is an exception to the hearsay rule. Defendant cannot show prejudice where substantially the same evidence was properly admitted through another witness. Defendant cannot show prejudice on appeal where his objections were sustained by the trial court. Where any asserted prejudice is at best highly speculative, defendant cannot meet his burden of showing a constitutional violation resulting from the denial of his motion to continue. Where defendant's assertions of ineffective assistance of counsel are based upon the failure of counsel to object to the introduction of evidence and the same evidence was introduced through another witness, and not challenged on appeal, defendant cannot show prejudice arising out of his counsel's conduct.

I. Factual and Procedural Background

On the afternoon of 3 December 2007, Keith Holloway (“Holloway”) went to the residence of Jody Bordeaux and Jimmy Jackson on Hanover Street in Asheville. Between 4:30 and 4:45, Holloway was observed getting into a black Volkswagen Jetta with tinted windows. At approximately 5:45 p.m., Jim Jones was driving down Pearson Bridge Road in Buncombe County and saw two individuals on the side of the road. One was “kind of hunkered down or almost laying on the left-hand side of the road,” and the second was crossing the road headed from the left side to the right. Mr. Jones noticed a dark sedan on the side of the road. Around 6:00 p.m., Donald Ramsey (Ramsey), was driving on Pearson Bridge Road with his wife and a friend when he noticed two individuals standing on the right side of the road. After passing them and as he was turning at the next intersection, he heard five gunshots, and one of his passengers said, “[t]hey've shot him and he's running down the road.” Ramsey immediately turned his car around and called 911. He found “[Holloway] was slumped, but he was still sitting on the roadway, and as I walked up to him he fell all the way backwards.”

An autopsy of Holloway revealed that he had four gunshot wounds to his arm and chest region, and a single gunshot wound to the head. Two .32 caliber bullets were recovered from Holloway's body. Dr. Donald Jason (Dr. Jason), a forensic pathologist, performed the autopsy and testified that the cause of death was the gunshot wound to the head.

Between 6:00 p.m. and 6:30 p.m., defendant arrived at the home of his brother, Jeff Banks. Brittany Jones (Jones) was at the residence when defendant arrived. Jones was Holloway's girlfriend and knew defendant through her aunt, Renee Harrin (Harrin). Harrin was the long-time girlfriend of Jeff Banks. Approximately one month prior to Holloway's murder, Jones and Holloway were suspended from school for having sex in a stairway at school. During the course of the murder investigation, Jones was interviewed several times, and she stated that defendant repeatedly got angry anytime he saw her talking to Holloway. A few weeks prior to Holloway's murder, defendant told Jones that “he was going to kill Holloway and make his mother stand over his grave and cry.” She also noticed that the day after defendant made this statement, she saw a picture of a tombstone with the inscription “R.I.P. Keith” on defendant's MySpace internet page.

On 4 December 2007, Detectives Weaver (Det. Weaver) and Downing (Det. Downing) interviewed defendant regarding Holloway's murder. In the interview, defendant acknowledged that he drove a black Volkswagen Jetta, and that he and Holloway had argued over Jones. Defendant stated that he and Holloway were “cool” and “everything was taken care of.” Defendant also admitted that he had posted some material about Holloway on his MySpace page, including the tombstone. After the interview, the investigation's review of defendant's MySpace page revealed several messages containing explicit threats of violence directed towards Holloway following the suspension of Jones and Holloway from school. The threatening messages included, “[t]his mother f_____ f_____ my girl [Jones] at school. He's dead” and “he [Holloway] better hope it was good, because that will be the last piece of p____ he gets.”

On 5 December 2007, Det. Downing interviewed Harrin and she wrote out and signed the following statement:

I got a phone call from Brian [defendant] about 5:45 pm on Mon. 12–3–07. He wanted to know when I was coming home and I told him in about 1 hour. So when I got home Brian was really upset—shaking and crying. I had ask [sic] him what was wrong and he said his nerves were bothering him and the medication he was taking was making him flip out. Then he told me he couldn't believe he did it and I said did what and he said I shoot [sic] Keith [Holloway] in the back of the head and then I shoot [sic] a couple more times toward his back. Then he started crying again and told me he thought Keith was dead. He told me he threw the gun over in some bushes or leaves where Keith's body was found and the Coat he was wearing he threw it in a trashcan at a car wash and I don't no [sic] what he did with his shirt he had on.

Det. Downing briefly halted the interview and relayed the information regarding the location of the murder weapon to his supervisor, Sergeant Welborn. Based upon this information, the murder weapon was located near where Holloway had been shot. The murder weapon was a Smith & Wesson .32 caliber long revolver which contained six spent cartridge casings. A search of defendant's room produced a gun case, multiple live rounds, and four (4) spent .32 caliber casings. Another live .32 caliber round was recovered from the front-door pocket of defendant's car.

The firearm and the six (6) spent casings, the four (4) spent casings recovered from defendant's room and the two (2) .32 caliber bullets recovered from Holloway's body during the autopsy, were submitted to Special Agent Shane Greene of the State Bureau of Investigation (“SBI”) for forensic examination. His examination revealed that the spent casings recovered from the cylinder of the revolver, from defendant's room, and the slugs recovered from Holloway's body were all fired from the .32 caliber revolver found at the murder scene.

On 6 December 2007, defendant was arrested and charged with the first-degree murder of Holloway.

Defendant was tried non-capitally. The jury found defendant guilty of first-degree murder on 23 February 2009. Defendant was sentenced to life imprisonment without possibility of parole and ordered to pay restitution in the amount of $10,897.04.

Defendant appeals.

II. Defendant's Motion to Dismiss

In his first argument, defendant contends that the trial court erred in failing to dismiss the first-degree murder charge based upon insufficiency of the evidence. We disagree.

A. Standard of Review

Since defendant offered evidence following the denial of his motion to dismiss at the close of the State's evidence, we only review his motion to dismiss made at the close of all the evidence. State v. Bruce, 315 N.C. 273, 280, 337 S.E.2d 510, 515 (1985). “[I]n ruling on a motion to dismiss, the trial court must determine whether there is substantial evidence of each essential element of the crime and whether the defendant is the perpetrator of that crime.” State v. Ford, 194 N.C.App. 468, 472–73, 669 S.E.2d 832, 836 (2008) (quoting State v. Everette, 361 N.C. 646, 651, 652 S.E.2d 241, 244 (2007)). On appellate review, this Court “must view the evidence in the light most favorable to the State, giving the State the benefit of every reasonable inference.” State v. Locklear, 322 N.C. 349, 358, 368 S.E.2d 377, 382–83 (1988) (citing State v. Williams, 319 N.C. 73, 79, 352 S.E.2d 428, 432 (1987)). “If there is substantial evidence—whether direct, circumstantial, or both—to support a finding that the offense charged has been committed and that the defendant committed it, the case is for the jury and the motion to dismiss should be denied.” Locklear, 322 N.C. at 358, 368 S.E.2d at 383 (citation omitted). Further, “[t]he defendant's evidence, unless favorable to the State, is not to be taken into consideration.” State v. Jones, 280 N.C. 60, 66, 184 S.E.2d 862, 866 (1971). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Earnhardt, 307 N.C. 62, 66, 296 S.E.2d 649, 652 (1982) ( quoting State v. Smith, 300 N.C. 71, 78–79, 265 S.E.2d 164, 169 (1980)).

B. Defendant as Perpetrator of Holloway's Murder

Defendant contends that the State failed to produce substantial evidence that he was the perpetrator of Holloway's murder. Defendant cites us to the case of State v. Cutler, 271 N.C. 379, 156 S.E.2d 679 (1967), where the State's evidence was deemed to be...