Banks v. State

2010 Ark. 108, 366 S.W.3d 341, 2010 Ark. LEXIS 133
CourtSupreme Court of Arkansas
DecidedMarch 4, 2010
DocketNo. CR 09-838
StatusPublished
Cited by7 cases

This text of 2010 Ark. 108 (Banks v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Banks v. State, 2010 Ark. 108, 366 S.W.3d 341, 2010 Ark. LEXIS 133 (Ark. 2010).

Opinion

PAUL E. DANIELSON, Justice.

|Appellant Kevin L. Banks was convicted of one count of capital murder and four counts of committing a terroristic act and was sentenced to concurrent terms of life imprisonment without parole and 480 months’ imprisonment, which were enhanced by a consecutive term of 180 months’ imprisonment for use of a firearm. He appeals from his criminal convictions and sentence, asserting two points: (1) that the circuit court erred in admitting items discovered during a search of a home in which he had not lived for four months prior to the search; and (2) that the circuit court erred in admitting certain testimony and evidence relating to a North Little Rock shooting that occurred after his incarceration. We affirm Banks’s convictions and sentence.

Because Banks does not challenge the sufficiency of the evidence supporting his convictions, only a brief recitation of the facts is necessary. See, e.g., Neal v. State, 375 Ark. 389, 291 S.W.3d 160 (2009). Around 5:00 a.m. on December 29, 2007, Little Rock police officers responded to a drive-by shooting that had occurred at 2715 Martin Luther King Drive. Upon arriving at the residence, the police encountered Antoine Jones, who was holding his girlfriend’s daughter, six-year-old Kamya Weathersby, who had been shot and later died. Police discovered that the side of the house was riddled with bullet holes and learned that, at the time of the shooting, Antoine; his girlfriend, LaShan-dra Washington; their daughter, Aries; and LaShandra’s daughter, Jasriea; along with Kamya, were in the home. Banks was ultimately charged with capital murder and four counts of committing a ter-roristic act in connection with the shooting, as were his half-brothers, Ricky Smith and Marqus Smith. The cases were severed, and Banks was tried and convicted on all counts.1 He now appeals.

I. Presenation

We note, as an initial matter, the State’s contention that Banks’s arguments are not preserved for appeal due to his failure to object at the first opportunity when the evidence at issue was admitted. We hold that the State’s lack-of-preservation argument is without merit. The State indicated, pretrial, its intent to use certain evidence at issue in its case against Banks via a motion entitled “Notice of Intent to Use Section 404(B) Evidence” and, later, a supplemental notice. Prior to the severance of the three defendants, the circuit court held a | shearing on the State’s notice, on September 11, 2008, during which all three defendants objected to the admissibility of the ammunition found during a search of the home in which all three had resided. In addition, an objection was made to the admissibility of evidence relating to the North Little Rock shooting. At the conclusion of the hearing, the circuit court ruled that the State could not discuss certain guns that were discovered during the search, but that the ammunition evidence was relevant. In addition, the circuit court ruled that, while there might be some question as to whether one of the defendants was in custody at the time of the search, that was an issue that went to the weight of the evidence. The circuit court also ruled that evidence relating to the North Little Rock shooting was admissible.

Four days later, it was requested that the matters be severed, and on September 17, 2008, the first day of Banks’s trial, Banks noted that he needed to renew his objections to the State’s 404(b) evidence. At that time, Banks again objected with respect to the admissibility of the ammunition evidence found at his former residence. Again, the circuit court overruled Banks’s objection, stating that whether Banks was incarcerated at the time of the search went to the weight of the evidence and that its probative value would outweigh any prejudicial effect. In addition, Banks objected to “the 404(b) introduction of anything included in the North Little Rock incident.” Again, the circuit court overruled Banks’s objection.

Clearly, no contemporaneous objection was required where the circuit court had twice overruled Banks’s objection to the admissibility of the evidence at issue, prior to its admission at trial. When an objection made in the form of a motion in limine has been overruled by |4the circuit court, a contemporaneous objection at trial is not required. See Banks v. State, 2009 Ark. 488, 347 S.W.3d 31. Accordingly, we hold that Banks’s argument is preserved for its review.

II. Evidence Resulting from Search

For his first point on appeal, Banks argues that the circuit court erred in admitting certain ammunition that was seized from his former residence during a search that occurred after he was incarcerated. He claims that the evidence was not relevant as to him, as the evidence was found in Ricky Smith’s bedroom. He further asserts that he had no constructive possession of the evidence, and that, even if the evidence were relevant, it should have been excluded because its probative value was substantially outweighed by the danger of unfair prejudice. The State urges that Banks’s sole objection to the ammunition’s admission was based on relevancy. It contends that the evidence was relevant in that it demonstrated that Banks had access, through his brother, to the type of ammunition used.

Here, as well as before the circuit court, Banks claims that the ammunition taken from his former home was not relevant and, therefore, inadmissible. Rule 401 of the Arkansas Rules of Evidence defines relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Ark. R. Evid. 401 (2009). Arkansas Rule of Evidence 402 further provides that “[ejvidence which is not relevant is not admissible.” Ark. R. Evid. 402 (2009). A circuit court’s ruling on relevancy will not be 15disturbed absent an abuse of discretion. See Barrett v. State, 354 Ark. 187, 119 S.W.3d 485 (2003). For evidence to be relevant, it is not required that the evidence prove the entire case; rather, all that is required is that it have any tendency to make any fact that is of consequence to the determination of the action more or less probable. See id

The State’s theory of its case was that Banks, along with his half-brothers, Ricky and Marqus, was responsible for the drive-by shooting that resulted in Kamya’s death. Here, Banks challenges the admission of ammunition that was found during a search of his former home, in which he lived with his half-brothers and parents. The ammunition found in Ricky’s bedroom consisted of the following: (1) one live nine-millimeter round; (2) a box for 7.62 by 39 ammunition; (3) nine live 7.62 by 39 rounds; (4) five 7.62 by 39 rounds; and (5) seven live .40-caliber rounds. The State sought to admit the ammunition found' “to show that these Defendants had knowledge of the sorts of weapons that were used in the death of Kamya Weathersby and had access to them.” The circuit court agreed that the evidence was relevant and deemed it admissible over Banks’s objections.

We cannot say the circuit court abused its discretion.

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Bluebook (online)
2010 Ark. 108, 366 S.W.3d 341, 2010 Ark. LEXIS 133, Counsel Stack Legal Research, https://law.counselstack.com/opinion/banks-v-state-ark-2010.