Banks v. State

782 So. 2d 1237, 2001 WL 361763
CourtMississippi Supreme Court
DecidedApril 12, 2001
Docket1999-KA-00410-SCT
StatusPublished
Cited by6 cases

This text of 782 So. 2d 1237 (Banks v. State) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Banks v. State, 782 So. 2d 1237, 2001 WL 361763 (Mich. 2001).

Opinion

782 So.2d 1237 (2001)

Calvin BANKS
v.
STATE of Mississippi.

No. 1999-KA-00410-SCT.

Supreme Court of Mississippi.

April 12, 2001.

*1238 Richard Burdine, Columbus, Mark Andrew Cliett, West Point, for Appellant.

Office of the Attorney General by Charles W. Maris, Jr., for Appellee.

Before BANKS, P.J., SMITH and WALLER, JJ.

WALLER, Justice, for the Court:

¶ 1. Calvin Banks was convicted in the Circuit Court of Clay County of the crime *1239 of capital murder. As a habitual offender, Banks was sentenced to life imprisonment without the possibility of parole or probation. Banks appeals and raises the following issues:

I. WHETHER THE TRIAL COURT ERRED IN ALLOWING HOMER IVY TO TESTIFY CONCERNING A CONVERSATION HAD WITH BANKS, WHILE IVY WAS CONDUCTING RELIGIOUS COUNSELING.
II. WHETHER THE TRIAL COURT ERRED IN ALLOWING THE TESTIMONY OF TONY ABSHIRE CONCERNING BANKS' POOR MONEY MANAGEMENT SKILLS.
III. WHETHER THE TRIAL COURT ERRED IN ALLOWING CELLMATE CONFESSION/ADMISSION HEARSAY TESTIMONY.
IV. WHETHER THE DISTRICT ATTORNEY'S REFERENCE TO BANKS AS A PREDATOR DURING CLOSING ARGUMENT WAS REVERSIBLE ERROR.
V. WHETHER REFERENCE BY THE DISTRICT ATTORNEY TO THE "BOLOGNA SANDWICH" CONSTITUTED REVERSIBLE ERROR.
VI. WHETHER THE TRIAL COURT ERRED IN OVERRULING BANKS' MOTION FOR J.N.O.V. OR IN THE ALTERNATIVE, FOR A NEW TRIAL AS THE JURY VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF EVIDENCE.

¶ 2. Finding no error in Banks' conviction and sentence, we affirm.

STATEMENT OF THE FACTS

¶ 3. Banks had been gambling in a card game with some friends not far from the home of Amy Ware for most of the afternoon of August 14, 1993, the day Ware was strangled to death. After complaining of having run out of money, Banks left the card game around 4:00 p.m. to "go get some more money." During the time that Banks was absent from the card game, the 80-year-old victim was murdered and robbed, with her purse being emptied, and the pockets on her pants left inside out.

¶ 4. Banks had been acquainted with the victim previously; she used to make lunch for him and had agreed to keep a few of his belongings while he was homeless and trying to find a place to stay. No signs of forced entry were found at the crime scene. At a time close in proximity to the crime, Banks was seen on the victim's front porch, apparently dusting himself off. Banks then reappeared at the card game, with money and a sack of clothes. Fingerprints were found at the scene not belonging to the victim or Banks.

¶ 5. When the police went to question Banks, he ran off, later announcing to a friend that he thought he might be in some trouble. When the police caught up with him, Banks gave a statement filled with contradictions. A couple of months after Banks' arrest, Homer Ivy, a close friend of the victim and deacon from a local church, visited the inmates at the county jail, as was his usual custom, to "spread the gospel" to those incarcerated. Ivy's message that day was an interpretation of the Lord's Prayer, specifically focusing on the need to forgive others. After the message was completed, Banks called Ivy back to his cell and discussed forgiveness with him. Ivy instructed Banks that you must forgive all to serve the Lord. Banks agreed *1240 and offered his hand to Ivy, with the two shaking in agreement.

¶ 6. After his arrest, Banks told a fellow inmate, Willie Walker, that he had gone to the victim's house to get some money and that he found her dead. Banks told another inmate, Bobby Wofford, that he had killed and would do so again if pushed. When asked by Wofford whether he killed Ware, Banks remained silent.

¶ 7. Following the denial of his motion for judgment notwithstanding the verdict or a new trial, Banks appealed his conviction and sentence.

DISCUSSION

I. WHETHER THE TRIAL COURT ERRED IN ALLOWING HOMER IVY TO TESTIFY CONCERNING A CONVERSATION HAD WITH BANKS, WHILE IVY WAS CONDUCTING RELIGIOUS COUNSELING.

¶ 8. Banks claims, as he did in his original appeal,[1] that the trial court committed reversible error in allowing Homer Ivy to testify regarding their conversation. We rejected Banks' contention that the admission of evidence by Ivy violated M.R.E. 505 (Priest Penitent Privilege), as Ivy was not a pastor. See Banks v. State, 725 So.2d 711, 716-17 (Miss.1997). While no objection was offered when Ivy took the stand in the second trial and similarly testified concerning inquiries from Banks about forgiveness, we find no basis for a different view on the admissibility of this testimony than was expressed in Banks' first appeal. See Lambert v. State, 574 So.2d 573, 575 (Miss.1990) (holding "failure to object to testimony when offered at trial results in the waiver of any right to present the matter on appeal.").

¶ 9. Additionally, Banks argues that, by admitting Ivy's testimony, he was denied his Sixth Amendment right to have an attorney present when being questioned. Banks argues that because the Clay County Sheriff's Office and the West Point Police Department knew that Ivy was a key prosecution witness and close friend of the victim, Ivy's presence in the jail was for the sole purpose of eliciting a confession, and not to "spread the gospel." Other than this bare allegation, Banks offers no evidence nor legal precedent to support this allegation. Therefore, this issue is without merit.

II. WHETHER THE TRIAL COURT ERRED IN ALLOWING THE TESTIMONY OF TONY ABSHIRE CONCERNING BANKS' POOR MONEY MANAGEMENT SKILLS.

¶ 10. Tony Abshire, Banks' employer at the time of Ware's death, testified that Banks' personality typically changed over the course of a week, as Banks inevitably ran out of money before payday. Once Banks ran out of money, he became very hard to get along with and was very irritable. The day before Ware's murder, Abshire and Banks argued over $60.00 that was deducted from Banks' paycheck for Banks' actions in damaging some equipment. Finally, Abshire testified that Banks failed to report to work on the day after Ware's murder.

¶ 11. While admitting that Abshire's testimony may have been relevant, Banks *1241 argues that it should have been excluded under M.R.E. 403, in that any relevance was outweighed by the danger of unfair prejudice, and that he was actually unfairly prejudiced at trial. However, a review of M.R.E. 403 indicates the rule actually states, "relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, ...."

¶ 12. The State admits using Abshire's testimony because of the prejudicial effect it would have on Banks. Such is the case with all evidence used to obtain a criminal conviction. Claiming prejudice is not enough to exclude evidence of one's motive to commit a crime. Our rules require more.

¶ 13. As a court of last resort, we have consistently held, "[t]here is a presumption that the judgment of the trial court is correct, and the burden is on the appellant to demonstrate some reversible error to this Court." Branch v. State, 347 So.2d 957, 958 (Miss.1977). Banks makes no argument and cites no authority that the probative value of Abshire's testimony was substantially outweighed by unfair prejudice. Thus we affirm the trial court's decision overruling Banks' objection to Abshire's testimony.

III.

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Cite This Page — Counsel Stack

Bluebook (online)
782 So. 2d 1237, 2001 WL 361763, Counsel Stack Legal Research, https://law.counselstack.com/opinion/banks-v-state-miss-2001.