State v. Banks
| Citation | 271 S.W.3d 90 |
| Decision Date | 07 November 2008 |
| Docket Number | No. W2005-02213-SC-DDT-DD,W2005-02213-SC-DDT-DD |
| Parties | STATE of Tennessee v. Devin BANKS. |
| Court | Supreme Court of Tennessee |
Robert Jones, Shelby County Public Defender; Phyllis Aluko and Tony N. Brayton, Assistant Public Defenders (on appeal); Kathy Kent and Latonya Burrow, Assistant Public Defenders (at trial); Memphis, Tennessee, for the appellant, Devin Banks.
Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Mark A. Fulks, Senior Counsel; Clarence Lutz, Assistant Attorney General (on appeal); William L. Gibbons, District Attorney General; Stacy McEndree and Karen Cook, Assistant District Attorneys General (at trial); Memphis, Tennessee, for the appellee, State of Tennessee.
WILLIAM C. KOCH, JR., J., delivered the opinion of the court, in which JANICE M. HOLDER, C.J., WILLIAM M. BARKER, CORNELIA A. CLARK, and GARY R. WADE, JJ., joined.
This appeal involves a defendant who shot two persons during a robbery at the home of one of the victims. One of the victims died. A Shelby County grand jury indicted the defendant for (1) premeditated and intentional murder, (2) murder during the perpetration of a robbery, (3) attempted first degree murder, and (4) especially aggravated robbery. A jury found the defendant guilty on all counts. At the penalty phase of the trial, the jury found the presence of the aggravating circumstances in Tenn.Code Ann. § 39-13-204(i)(6) and (7) (2006) and sentenced the defendant to death. In a separate sentencing hearing, the trial court sentenced the defendant to twenty-five years for the attempted first degree murder and especially aggravated robbery convictions and ordered these sentences to be served consecutively to each other and to the sentence of death. The defendant appealed his convictions and sentences to the Court of Criminal Appeals. The Court of Criminal Appeals, after concluding that the trial court's submission of the Tenn.Code Ann. § 39-13-204(i)(6) aggravating circumstance to the jury was harmless error, affirmed the defendant's convictions and the sentences. State v. Banks, No. W2005-02213-CCA-R3-DD, 2007 WL 1966039 (Tenn.Crim.App. July 6, 2007).
We have concluded that the Court of Criminal Appeals erred by holding that the evidence did not support submitting the Tenn.Code Ann. § 39-13-204(i)(6) aggravating circumstance to the jury. We also hold as follows: (1) the trial court committed no errors with regard to the admission or exclusion of evidence, (2) the trial court did not err with regard to its handling of the Arabic language interpreter or the dismissal of one of the jurors, (3) the prosecutor's closing arguments did not result in reversible error, (4) the trial court did not commit reversible error with regard to the instructions for lesser-included offenses, (5) the evidence supports the defendant's convictions for attempted first degree murder and especially aggravated robbery, (6) the sentences of attempted first degree murder and especially aggravated robbery are not excessive, and the trial court did not err by ordering them to be served consecutively, (7) the evidence supports the defendant's first degree murder convictions, as well as the jury's finding that the Tenn.Code Ann. § 39-13-204(i)(6) and (7) aggravating circumstances apply in this case, (8) the defendant's multiple constitutional challenges to Tennessee's death penalty procedures are without merit, and (9) the defendant's constitutional challenge to Tennessee's lethal injection protocol is without merit. We also agree with the Court of Criminal Appeals's conclusion with respect to the remaining issues and attach to this opinion as an appendix the relevant portions of that court's opinion. Finally, in the discharge of our obligation under Tenn.Code Ann. § 39-13-306 (2006), we have thoroughly reviewed the record in this case and have determined (1) that the defendant's death sentence was not imposed in an arbitrary fashion, (2) that the evidence fully supports the aggravating circumstances in Tenn.Code Ann. § 39-3-204(i)(6) and (7), (3) that these aggravating circumstances outweigh the mitigating circumstances offered by the defendant, and (4) that the defendant's death sentence, taking into consideration the nature of the offenses and the defendant himself, is neither excessive nor disproportionate to the penalties imposed in similar cases. Accordingly, the judgment of the Court of Criminal Appeals, as corrected by this opinion, is affirmed.
Kadhem Al-Maily and Hussain Atilebawi immigrated to the United States from Iraq and eventually settled in Memphis, Tennessee. They were acquainted with each other in their home country, and they became close friends in Memphis because neither of their families had accompanied them to the United States. Mr. Al-Maily, who was called "Uncle" by those who knew him, was widely known and respected among the Iraqi community in Memphis because he had a reputation of helping persons in need and of making everybody happy.1 When Mr. Atilebawi first moved to Memphis, he worked in a grocery store. Later, he operated a body shop and also ran several other businesses out of his home, including selling used automobiles and men's clothing.
After they moved to Memphis, both Mr. Al-Maily and Mr. Atilebawi befriended Devin Banks, who lived near Mr. Atilebawi. Mr. Banks, whose nickname was "Boo," was much younger than Mr. Al-Maily and Mr. Atilebawi. Mr. Atilebawi was very generous to Mr. Banks. He would hire Mr. Banks to perform "odd jobs," such as constructing a fence around his house. Mr. Atilebawi also sold several used cars to Mr. Banks on very favorable terms. Mr. Banks was welcome in Mr. Atilebawi's home, and he occasionally spent the night at Mr. Atilebawi's house.
By September 2002, the relationship between Mr. Banks and Mr. Atilebawi had changed, at least from Mr. Banks's point of view. Mr. Banks was apparently upset about an incident that had occurred one year earlier involving a former girlfriend,2 and he also believed that Mr. Atilebawi had cheated him out of a large sum of money.3 On Thursday, September 12, 2002, he told his friend, Michael Hilliard, that he "wanted to pay [Mr. Atilebawi] back." Mr. Banks asked Mr. Hilliard to obtain a handgun for him and to assist him in killing Mr. Atilebawi. The two men discussed dumping Mr. Atilebawi's body in the Wolf River to avoid detection.
Around 11:00 p.m. on Sunday, September 15, 2002, Mr. Banks drove his white Ford Explorer to Sherry Tomason's house to drop off her son. Ms. Tomason lived near Mr. Banks's brother's house where Mr. Banks was staying. The Explorer had a flat tire, and Ms. Tomason gave Mr. Banks permission to leave the vehicle in her yard. She also offered to give Mr. Banks a ride, but Mr. Banks told her that he was going to see the man who had sold him the vehicle and that this man lived nearby. Ms. Tomason noted that it seemed to be late in the evening to do that, but Mr. Banks was insistent.
After leaving Ms. Tomason's house, Mr. Banks met up with Mr. Hilliard, and the two men proceeded to Mr. Atilebawi's house. Mr. Banks was armed with a .22 caliber semi-automatic pistol provided by Mr. Hilliard. They decided that Mr. Banks would arrive at Mr. Atilebawi's house alone and that Mr. Hilliard would wait for a telephone call from Mr. Banks summoning him to Mr. Atilebawi's house.
That same evening, Mr. Al-Maily was visiting Mr. Atilebawi. The two men were engaged in conversation and watching television when Mr. Banks arrived at Mr. Atilebawi's front door between midnight and 2:00 a.m. on the morning of September 16, 2002. Mr. Atilebawi welcomed Mr. Banks into his home, and Mr. Banks was surprised when he saw Mr. Al-Maily sitting in Mr. Atilebawi's living room. Mr. Banks and Mr. Atilebawi talked awhile, and their "general conversation" touched on Mr. Banks's belief that Mr. Atilebawi owed him money and on Mr. Banks's relationship with Ms. Thompson. At some point during the conversation, Mr. Banks asked permission to use Mr. Atilebawi's cordless telephone and stepped outside to call Mr. Hilliard.
Mr. Atilebawi thought that Mr. Banks was acting suspiciously. He joined Mr. Banks outside because he wanted to check on the used vehicles that were parked in the front of his house. Mr. Atilebawi walked down his driveway to inspect the vehicles, and, as he turned around to walk back to the house, Mr. Banks shot him with the .22 caliber pistol. After Mr. Atilebawi fell to the driveway, Mr. Banks shot him three more times. Two bullets struck Mr. Atilebawi in the head, one in the shoulder, and one in the leg. Mr. Atilebawi was bleeding profusely, and it became difficult for Mr. Atilebawi to see because his eyes were covered with blood.
Mr. Banks tried to drag Mr. Atilebawi's body from the driveway but was unable to move Mr. Atilebawi because he was too heavy. Mr. Banks later confessed, "I was scared and didn't want nobody to see him," and "I tried to pull him away but he was too heavy for me to move." He left Mr. Atilebawi in the driveway and returned to the house. Despite the blood covering his face, Mr. Atilebawi saw Mr. Banks enter his house. He was also able to faintly see another person with Mr. Banks. This person was Mr. Hilliard who, by that time, had joined Mr. Banks.
When Mr. Banks re-entered Mr. Atilebawi's house, he confronted Mr. Al-Maily. Mr. Al-Maily turned over three hundred dollars in cash to Mr. Banks. Mr. Banks then ordered Mr. Al-Maily into Mr. Atilebawi's bedroom and commanded him to lie face down on the floor. Mr. Al-Maily complied. Messrs. Banks and Hilliard then began rummaging through Mr. Atilebawi's bedroom and living room looking for items to steal. Eventually, they decided to steal a red Jeep Cherokee and a Chevrolet Caprice from among the cars in the front yard. They loaded audio speakers and many shirts and hats in their original packaging into the...
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