IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

June 4, 2008 Session

STATE OF TENNESSEE v. DEVIN BANKS

 Automatic Appeal from the Court of Criminal Appeals

Criminal Court for Shelby County

No. 03-01956 Joseph B. Dailey, Judge

No. W2005-02213-SC-DDT-DD - Filed November 7, 2008

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
Mary Hughes, Mr. Atilebawi’s girlfriend and caretaker, explained that Mr. Al-Maily was nicknamed “Uncle” 1

“[b]ecause he was . . . the Uncle of the whole group. If they needed something, he’ll help them. He was a real good guy

like that. If you’re hungry, he’ll . . . get you something to eat . . . . [H]e was a real good person.”

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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. 

Tenn. Code Ann. § 39-13-206(a)(1) (2006); Judgment of the Court of Criminal Appeals

Reversed in Part and Affirmed

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.

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.

OPINION

I.

THE CRIME, ARREST, AND INVESTIGATION

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. When Mr. Atilebawi first

1

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
Mr. Banks was dating Sondra Thompson in September 2001. One night, during a visit to Mr. Atilebawi’s 2

home, Mr. Banks, Ms. Thompson, and Mr. Atilebawi fell asleep in Mr. Atilebawi’s living room. All of them ended up

spending the night in the living room. When she awoke, Ms. Thompson discovered that the side of the shorts she was

wearing had been cut while she was sleeping, and she decided that Mr. Atilebawi must have done it. When Mr. Banks

awakened, Ms. Thompson showed him her shorts and told him that she thought Mr. Atilebawi had cut them. Mr. Banks

did not appear to be surprised or concerned. He simply continued walking Ms. Thompson to her car and then returned

to the house to go back to sleep. The police were never called, and, at least as far as this record shows, Mr. Banks never

confronted Mr. Atilebawi about the incident. Ms. Thompson broke up with Mr. Banks in December 2001 because of

the verbal and physical abuse she received from Mr. Banks. 

The record contains little evidence regarding how Mr. Atilebawi had allegedly cheated Mr. Banks. 3

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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, and he also believed that Mr. Atilebawi had 2

cheated him out of a large sum of money. On Thursday, September 12, 2002, he told his friend, 3

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.
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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. AlMaily turned over three hundred dollarsin 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 Jeep. Mr. Banks also pocketed several thousand

dollars in cash. The cash – mostly one hundred dollar bills and possibly in excess of six thousand

dollars – was the proceeds from the sale of one of Mr. Atilebawi’s used cars.

After all the stolen property had been loaded into the Jeep, Mr. Banks re-entered Mr.

Atilebawi’s house, and walked through the living room and the short hallway to the bedroom where

Mr. Al-Maily was still lying face-down on the floor. Mr. Al-Maily had cooperated fully with Mr.

Atilebawi during the robbery. He had not interfered or resisted in any way, and he had quickly

surrendered all the cash he had with him to Mr. Banks.

Nonetheless, Mr. Banks drew his .22 caliber pistol, placed it not more than twenty-four

inches from Mr. Al-Maily’s head, and shot him behind the right ear. The bullet ricocheted into the

left portion of Mr. Al-Maily’s brain. The force of the gunshot caused Mr. Al-Maily to vomit

reflexively, and Mr. Banks watched the blood and vomit flow from Mr. Al-Maily’s mouth. Mr.

Banks walked out of the house and returned the pistol to Mr. Hilliard. Messrs. Banks and Hilliard

then left the scene, Mr. Banks driving the red Jeep and Mr. Hilliard driving the Chevrolet Caprice.

They later abandoned the Caprice at an apartment complex, and Mr. Banks drove Mr. Hilliard home

in the red Jeep.

Mr. Atilebawi continued to lie bleeding in the driveway where he had fallen after Messrs.

Banks and Hilliard entered his house. He did not dare move because he was afraid that he would

attract Mr. Banks’s attention and that Mr. Banks would shoot him again. Mr. Banks later stated that

he thought Mr. Atilebawi was still alive when he left because he heard Mr. Atilebawi call his

nickname, “Boo.”
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After dropping off Mr. Hilliard, Mr. Banks picked up his brother in the stolen red Jeep and

went on an early morning shopping spree with the money he had taken from Mr. Atilebawi. He

purchased men’s clothing at a nearby K-Mart store, a camera and some hair products at a nearby

Walgreens drug store, and some brake pads and an air freshener for the white Ford Explorer at an

Auto Zone store. Along the way, Mr. Banks and his brother stopped for breakfast at a Waffle House,

and Mr. Banks even picked up an employment application at Walgreens. Mr. Banks brought his

brother home at approximately 6:30 a.m.

At approximately 7:00 a.m., Mr. Banks drove the red Jeep to Ms. Tomason’s house. Before

driving Ms. Tomason’s son to school, he talked with Ms. Tomason awhile and retrieved a compact

disc from his Ford Explorer that was still parked in her front yard. After dropping off Ms.

Tomason’s son at school, Mr. Banks drove to Maco Tires and Auto Care where he purchased custom

rims and new tires for the Jeep for approximately $1,500. Mr. Banks paid cash, and the manager

remembered that he “pulled out quite a bit of money and . . . started peeling off one hundred dollar

bills.” 

When the manager put the old rims and tires in the back of the Jeep, he noticed a significant

amount of matching shirts and hats in their original packaging. When he asked Mr. Banks about the

clothing, Mr. Banks told the manager that he sold clothing and that he had just returned from St.

Louis. Mr. Banks sold the manager two sets of matching shirts and hats for ten dollars each.

In the meantime, despite multiple gunshot wounds and significant blood loss, Mr. Atilebawi

managed to drag himself to the telephone in his house. He was apparently able to press the redial

button on the telephone and connect with a friend in Detroit, Michigan. What Mr. Atilebawi told

his friend in Detroit is unclear. However, that call prompted Mr. Atilebawi’s friend to call some of

Mr. Atilebawi’s friends in Tennessee, including Mohammed Al-Burkart and Aadel Alkhafaji. Mr.

Al-Burkart and his wife drove to Mr. Atilebawi’s house and telephoned the police as soon as they

saw what had taken place.

Officer Steven Jones was the first officer to arrive at Mr. Atilebawi’s house at approximately

7:00 a.m. He found Mr. Atilebawi lying in a pool of blood on a sofa in the living room and observed

that there was blood all over the living room. Even though Mr. Atilebawi was disoriented and dazed,

he told Officer Jones what had happened and identified “Boo” as the person who had shot him. He

described “Boo” as an African-American male in hislate teens or early twenties. Mr. Atilebawi also

told Officer Jones that “Uncle” was in the other room. Officer Jones then discovered Mr. Al-Maily

dead in the bedroom. Officer Jones summoned medical assistance, crime scene investigators, and

homicide detectives to the scene. The emergency medical responders arrived at Mr. Atilebawi’s

house a short time later. 

The officers at the scene began to interview neighbors to learn who “Boo” was. They learned

quickly that “Boo” was Mr. Banks’s nickname and that they should be on the lookout for a red Jeep.

Sergeant Mark Miller was in the neighborhood following up on these leads when he saw a Jeep
Mr. Banks was on his way from Maco Tires and Auto Care to his brother’s house to get some sleep when he 4

was spotted by Officer Miller. 

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matching the description of the Jeep stolen from Mr. Atilebawi traveling in his direction. When the 4

Jeep made an abrupt turn and headed down another street, Sergeant Miller gave chase and stopped

the Jeep. When Sergeant Miller ascertained that Mr. Banks was driving the Jeep, he placed Mr.

Banks under arrest at approximately 9:30 a.m. During his search of Mr. Banks and the Jeep,

Sergeant Miller found $1,253 in cash (including ten one hundred dollar bills), the stolen clothing and

audio speakers, and the receipts for the purchases Mr. Banks had made during the shopping spree

with his brother.

Mr. Banks did not appear to be injured when he was arrested. He acted in a lackadaisical

manner and said nothing at the scene of the arrest. Mr. Banks was transported to the Homicide

Office of the Memphis Police Department, and the Jeep was impounded. At 1:42 p.m., Sergeant

Miller and Lieutenant Michael Williams advised Mr. Banks of his Miranda rights, and Mr. Banks

signed a written waiver of his rights and gave the first of two confessions. 

In his first confession, Mr. Banks admitted that he was present at Mr. Atilebawi’s house

when Mr. Atilebawi was shot, but he claimed that a man named Brian Winters had shot Mr.

Atilebawi. Mr.Banks confessed that he had stolen the red Jeep, the clothing, and the audio speakers.

He also confessed that he had tried to hide Mr. Atilebawi’s body. In addition, he stated that he and

Mr. Atilebawi had discussed his belief that Mr. Atilebawi owed him money and his belief that Mr.

Atilebawi had molested Ms. Thompson in September 2001. 

Following Mr. Banks’s first confession, the authorities arrested Mr. Winters at his house and

also recovered a .25 caliber pistol and a .22 caliber pistol that later proved to be the pistol that shot

both Messrs. Atilebawi and Al-Maily. Coincidently, Mr. Hilliard was at Mr. Winters’s residence

when Mr. Winters was arrested, but he was not a person of interest to the authorities at that time.

Once in custody, Mr. Winters denied that he had been involved with the shootings or the robbery at

Mr. Atilebawi’s house and provided the authorities with the names and telephone numbers of several

alibi witnesses.

On September 17, 2002, while in the process of confirming Mr. Winters’s alibi, Sergeant

Miller talked with both Mr. Winters’s girlfriend and Mr. Hilliard on the telephone. He asked Mr.

Hilliard to come down to the police station to give a statement regarding Mr. Winters’s whereabouts

when the crimes were committed. 

When Mr. Hilliard stated that he had no means of transportation, Sergeant Miller offered to send a

car for him. When Mr. Hilliard arrived at the police station, he gave Sergeant Miller what he

believed to be an owner’s manual for a Jennings .22 caliber semi-automatic pistol. 

The same day, after Mr. Banks told the authorities that he wanted to recant portions of the

confession he had given to Sergeant Miller and Lieutenant Williams on September 16, 2002,

Sergeant James L. Fitzpatrick obtained a second confession from Mr. Banks. Mr. Banks was

brought back to the Homicide Office, and Sergeant Fitzpatrick again informed Mr. Banks of his

Miranda rights and obtained a signed written waiver of these rights on September 17, 2002, at 4:05
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p.m. Mr. Banks then gave a second confession which was reduced to writing. Mr. Banks was given

an opportunity to review and to correct his written confession. He made no changes and then

initialed each page and signed the confession at 5:06 p.m. 

In his second confession, Mr. Banks admitted that he had shot Mr. Al-Maily and Mr.

Atilebawi with a black .22 or .25 caliber automatic pistol that belonged to Mr. Hilliard. He stated

that he obtained the pistol from Mr. Hilliard on Sunday night before he went to Mr. Atilebawi’s

house. He told Sergeant Fitzpatrick that he shot Mr. Atilebawi in revenge for Mr. Atilebawi’s

cheating him out of a large sum of money and because ofthe September 2001 incident involving Ms.

Thompson. Mr. Banks admitted that he had explained to Mr. Hilliard three days before the shooting

why he wanted the pistol and that at that time they had discussed disposing of Mr. Atilebawi’s body

in the Wolf River.

Mr. Banks provided the details of the crime during his second confession. He admitted

arriving at Mr. Atilebawi’s house alone early on the morning of September 16, 2002. He stated that

he engaged Mr. Atilebawi in conversation and then called Mr. Hilliard to come to Mr. Atilebawi’s

house. He admitted that he shot Mr. Atilebawi. He admitted robbing Mr. Al-Maily and Mr.

Atilebawi and taking more than three thousand dollars in cash, two automobiles, men’s clothing, and

audio speakers. Finally, he admitted returning to the house and executing Mr. Al-Maily after he and

Mr. Hilliard had filled the Jeep with stolen property.

The fact that Mr. Banks remained in the area aftershooting Messrs. Al-Maily and Atilebawi

prompted Sergeant Fitzpatrick to ask Mr. Banks about his shopping spree immediately after he

committed the crimes. When Sergeant Fitzpatrick asked him why he had purchased new rims and

tires for the Jeep, Mr. Banks stated simply, “I figured that I would keep the Jeep.” He offered no

explanation for picking up the job application at Walgreens.

The two head wounds that Mr. Atilebawi received at the hands of Mr. Banks were

devastating and serious. Bullet and bone fragments were surgically removed from Mr. Atilebawi’s

brain, and surgeons were required to remove a portion of Mr. Atilebawi’s temporal lobe that controls

speech, memory, and personality. As a result of hisinjuries, Mr. Atilebawi was rendered susceptible

to seizures and was left with cognitive problems, which manifest themselves in the form of speech

difficulties and memory problems. Mr. Atilebawi was hospitalized for approximately one month.

When he returned home, he discovered that property with an estimated value of forty thousand

dollars had been stolen, including his furniture, a stereo, and a big screen television. 

II.

THE INDICTMENT AND TRIAL

In March 2003, a grand jury in Shelby County returned a four-count indictment against Mr.

Banks. The indictment charged Mr. Banks with (1) the premeditated and intentional killing of Mr.
Tenn. Code Ann. § 39-13-202(a)(1) (Supp. 2002). 5

Tenn. Code Ann. § 39-13-202(a)(2) (Supp. 2002). 6

Tenn. Code Ann. § 39-12-101 (1997). 7

Tenn. Code Ann. § 39-13-403(a) (1997). 8

Tenn. Code Ann. § 39-13-204(i)(6) (Supp. 2002). 9

Tenn. Code Ann. § 39-13-204(i)(7) (Supp. 2002). 10

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Al-Maily; (2) the killing of Mr. Al-Maily in the perpetration of robbery; (3) the attempted first 5 6

degree murder of Mr. Atilebawi; and (4) the especially aggravated armed robbery of property over 7

the value of ten thousand dollars from Mr. Atilebawi. 

8

One month later, on April 7, 2003, Mr. Banks filed a motion to require the State of Tennessee

to announce whether it intended to seek the death penalty or another enhanced punishment. On April

10, 2003, the State announced its intention to seek the death penalty. In accordance with Tenn. R.

Crim. P. 12.3, the State also notified Mr. Banks that it intended to rely upon the following two

aggravating circumstances: first, that the murder was committed for the purpose of avoiding,

interfering with, or preventing a lawful arrest or prosecution, and second, that the murder was 9

committed while Mr. Banks was engaging in committing a first degree murder or robbery. 

10

Mr. Banks’s trial began on April 4, 2005. After three days of voir dire, the State presented

numerous witnesses over the course of three days of testimony. These witnesses included Mr.

Atilebawi, the neurologist who treated Mr. Atilebawi, neighbors and friends who knew the parties,

the police officers and forensicwitnesses who had been involved in the investigation, the pathologist

who performed Mr. Al-Maily’s autopsy, and the store manager from whom Mr. Banks had purchased

the rims and tires for the Jeep. After Mr. Banks indicated that he did not desire to testify, the defense

rested without presenting any evidence. The jury began its deliberations on Friday, April 8, 2005,

and on Saturday, April 9, 2005, returned a verdict finding Mr. Banks guilty on all four counts of the

indictment. 

The penalty phase of the trial began on Saturday, April 9, 2005, after the guilt phase of the

trial concluded. The State called Mr. Atilebawi and his partner, Mary Hughes, to testify regarding

the impact of Mr. Banks’s crimes on the victims. Mr. Banks did not testify during the punishment

phase; however, he called eleven mitigation witnesses. These witnesses presented a positive and

sympathetic image of Mr. Banks. The implicit, and at times explicit, undercurrent of their testimony

was the youth of Mr. Banks who was only nineteen years old when he murdered Mr. Al-Maily.

Five employees of the Office of the Shelby County Sheriff testified about his conduct in

prison and his efforts to rehabilitate himself. They described Mr. Banks as a model prisoner who

had two minor blemishes on his disciplinary record and reported that he had participated in programs

involving religious studies, anger management, drug and alcohol abuse, and other skills programs.

Three members of the Leewood Baptist Church also testified about Mr. Banks’s commitment to his

church and his church-related activities. Several of these witnesses expressed disbelief that Mr.
Specifically, the jury determined that “[t]he murder was committed for the purpose of avoiding, interfering

11

with, or preventing a lawful arrest or prosecution of the defendant or another” and that “[t]he murder was knowingly

committed, solicited, directed, or aided by the defendant, while the defendant had a substantial role in committing or

attempting to commit, or was fleeing after having a substantial role in committing or attempting to commit, any robbery.”

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Banks could have committed the crimes for which he had been convicted and pleaded with the jury

to spare his life.

Three members of Mr. Banks’s immediate family, his mother, an older sister, and his oldest

brother, also testified during the sentencing phase of the trial. They described Mr. Banks’s home life

when he was growing up, including the challenges of being one of ten children of a mother who was

in and out of prison because of various forgery convictions and whose fathers were generally absent.

They also portrayed Mr. Banks as a gentle child who enjoyed cooking, playing with cars, writing

poetry, and drawing pictures. In addition, they described the difficulties that Mr. Banks experienced

when, at the age of sixteen, he learned that he was HIV- positive. These family members testified

that they loved and missed Mr. Banks and that they intended to continue to correspond with and visit

Mr. Banks while he was incarcerated.

Through cross-examination of Mr. Banks’s witnesses, the State established that Mr. Banks

had been assigned to a prison unit where the prisoners were afforded special privileges and that,

while Mr. Banks’s disciplinary history compared favorably to the general inmate population, the

number of his disciplinary offenses was high when compared with the offenses of other prisoners

on the unit. The State also established that Mr. Banks had been supported during his youth by a

loving grandmother, older siblings, and members of his church and that his older siblings did not

mistreat him.

The State presented to the jury that Mr. Banks’s criminal record included assault, battery, and

domestic violence. In addition, the State called Ms. Thompson, Mr. Banks’s former girlfriend, as

a rebuttal witness. Ms. Thompson painted a starkly different picture from the one painted by his

family and church friends. She testified that Mr. Banks never told her that he was HIV-positive and

that she learned about his medical condition from another one of his former girlfriends. She also

testified that Mr. Banks regularly abused her physically and verbally, and she described an incident

when Mr. Banks pointed a gun to her stomach when she was eight months pregnant.

The jury returned its verdict on Monday, April 11, 2005. It concluded that the State had

proved the existence of both aggravating circumstances beyond a reasonable doubt. The jury also 11

found unanimously and beyond reasonable doubt that the aggravating circumstances outweighed the

mitigating circumstances. Accordingly, the jury unanimously sentenced Mr. Banks to death.

At a later sentencing hearing, the trial court merged the first two counts of the indictment –

the two capital convictions – and sentenced Mr. Banks to death. It imposed a twenty-five year

sentence for the attempt to commit first degree murder conviction and a twenty-five year sentence

for the especially aggravated robbery conviction and determined that Mr. Banks should serve these

sentences consecutively to each other and to the merged capital conviction. 
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Mr. Banks appealed to the Court of Criminal Appeals, raising numerous challenges to his

convictions and sentences. On July 6, 2007, the Court of Criminal Appeals affirmed Mr. Banks’s

convictions for first degree murder and the resulting sentence of death. State v. Banks, No. W2005-

02213-CCA-R3-DD, 2007 WL 1966039, at *59 (Tenn. Ct. App. July 6, 2007). The court also

affirmed Mr. Banks’s convictionsfor especially aggravated robbery and criminal attempt to commit

premeditated murder, as well as their resulting sentences. State v. Banks, 2007 WL 1966039, at *59.

The affirmance of Mr. Banks’s capital convictions and death sentence triggered an automatic review

by this Court in accordance with Tenn. Code Ann. § 39-13-206(a)(1) (2006). Mr. Banks raises

numerous arguments related to his convictions and sentences which we will address in turn. 

III.

THE FAILURE TO INCLUDE AGGRAVATING CIRCUMSTANCES 

IN THE INDICTMENT

After careful study of the parties’ briefs with regard to the issue of the failure to include the

aggravating circumstances in the indictment, we are persuaded that the decision of the Court of

Criminal Appeals on this issue should be affirmed. Moreover, because we find that the opinion of

the Court of Criminal Appeals, State v. Banks, 2007 WL 1966039, at *38 adequately states the facts

and the law on this issue, we adopt this portion of the opinion as the opinion of this Court and

include it as an appendix to this opinion.

IV.

THE ADMISSION OF THE PHOTOGRAPH OF MR. ATILEBAWI

After careful study of the parties’ briefs with regard to the issue of the admission of the

photograph of Mr. Atilebawi, we are persuaded that the decision of the Court of Criminal Appeals

on this issue should be affirmed. Moreover, because we find that the opinion of the Court of

Criminal Appeals, State v. Banks, 2007 WL 1966039, at *14-16 adequately states the facts and the

law on this issue, we adopt this portion of the opinion as the opinion of this Court and include it as

an appendix to this opinion.

V.

THE ADMISSION OF MR. BANKS’S STATEMENTS TO THE POLICE BEFORE

RULING ON HIS MOTION TO SUPPRESS

After careful study of the parties’ briefs with regard to the issue of Mr. Banks’s suppression

motion, we are persuaded that the decision of the Court of Criminal Appeals on this issue should be

affirmed. Moreover, because we find that the opinion of the Court of Criminal Appeals, State v.

Banks, 2007 WL 1966039, at *16-19, adequately states the facts and the law on this issue, we adopt

this portion of the opinion as the opinion of this Court and include it as an appendix to this opinion.

VI.

THE ADMISSION OF MR. ATILEBAWI’S STATEMENT TO OFFICER JONES AS AN EXCITED

UTTERANCE
Mr. Banks is correct that the statement does not qualify for the dying declaration exception to the hearsay rule.

12

Mr. Atilebawi’s statement cannot qualify as a dying declaration because he survived the attack. State v. Lewis, 235

S.W.3d 136, 149 (Tenn. 2007) (noting that one element of the dying declaration exception is that the declarant is “dead

at the time of the trial”). Tennessee evidence law provides that the exception for statements made “under belief of

impending death” only applies where the declarant is unavailable because he or she has died. Tenn. R. Evid. 804(b)(2);

Tenn. R. Evid. 804(b)(2) advisory comm’n cmt.; see also Neil P. Cohen et al., Tennessee Law of Evidence § 8.35[2][b],

at 8-156 (5th ed. 2005) (“Tennessee Law of Evidence”).

-11-

Mr. Banks asserts that the trial court erred by admitting into evidence statements made by

Mr. Atilebawi to Officer Jones. Mr. Banks specifically takes issue with the following testimony:

PROSECUTOR: Officer Jones, when you asked Mr. Atilebawi what

happened, what did he tell you?

OFFICER JONES: He told me that a person that he knew as Boo

asked to use his phone. As he was talking on the phone he was acting

very suspicious. And at that time he walked out. He felt a very sharp

pain to his head and to his shoulder and heard a couple pops and he

ran back inside the house.

PROSECUTOR: . . . Who ran back inside the house?

OFFICER JONES: The . . . suspect did. . . . They were outside talking

because he walked back outside with the phone. And as they ran

back inside the house, he felt another – he heard another pop and he

felt a sharp pain to his shoulder.

Mr. Banks objected at trial that this testimony constituted inadmissible hearsay. The trial court,

however, concluded that the testimonywas admissible as an excited utterance and also stated it could

possibly be admitted as a dying declaration. The Court of Criminal Appeals concluded that the trial 12

court did not err by admitting the statement as an excited utterance. Mr. Banks appeals from the

Court of Criminal Appeals’s conclusion. He contends that the statement does not fall within the

excited utterance exception because (1) the statement was made in response to a question, (2) the

statement was given several hours after Mr. Atilebawi was shot, and (3) Mr. Atilebawi was not still

under the stress of a startling event. We affirm the Court of Criminal Appeals’s determination that

the trial court did not err in admitting the statement as an excited utterance.

Decisions regarding the admission or exclusion of evidence are entrusted to the trial court’s

discretion. Thus, reviewing courts will not disturb these decisions on appeal unless the trial court

has abused its discretion. State v. Robinson, 146 S.W.3d 469, 490 (Tenn. 2004); State v. James, 81

S.W.3d 751, 760 (Tenn. 2002). Reviewing courts will find an abuse of discretion only when the trial

court applied incorrect legal standards, reached an illogical conclusion, based its decision on a

clearly erroneous assessment of the evidence, or employed reasoning that causes an injustice to the

complaining party. Konvalinka v. Chattanooga-Hamilton County Hosp. Auth., 249 S.W.3d 346, 358

(Tenn. 2008). 
Frederick Schauer, On the Supposed Jury-Dependence of Evidence Law, 155 U. Pa. L. Rev. 165, 176-77 13

(2006).

The evidence does not permit an exact determination of the length of the interval between Mr. Atilebawi being

14

shot and Officer Jones arriving on the scene. For the purpose of this opinion, we accept Mr. Banks’s suggested time

frame that approximately six hours passed between Mr. Atilebawi being shot and his response to Officer Jones’s inquiry.

-12-

Hearsay is “a statement, other than one made by the declarant while testifying at the trial or

hearing, offered in evidence to prove the truth of the matter asserted.” Tenn. R. Evid. 801(c).

Hearsay evidence is inadmissible unless permitted by the rules of evidence or otherwise by law.

Tenn. R. Evid. 802. Tennessee law recognizes numerous exceptions to the bar on the admission of

hearsay evidence. See generally Tenn. R. Evid. 803; Tenn. R. Evid. 804. Despite the significant

number of exceptions, “it would be a mistake to underestimate the force of the basic rule, which

especially but by no means only in criminal trials, plainly excludes a substantial amount of otherwise

relevant evidence.” 

13

Well-rooted among the myriad of exceptions to the general rule barring hearsay evidence are

excited utterances. Excited utterances are statements “relating to a startling event or condition made

while the declarant was under the stress of excitement caused by the event or condition.” Tenn. R.

Evid. 803(2). To qualify as an excited utterance, three criteria must be met: (1) there must be a

startling event or condition that causes the stress or excitement; (2) the statement must relate to the

startling event or condition; and (3) the statement must be made while the declarant was under the

stress or excitement caused by the startling event or condition. State v. Gordon, 952 S.W.2d 817,

820 (Tenn. 1997); State v. Samuel, 243 S.W.3d 592, 600 (Tenn. Crim. App. 2007); see also

Tennessee Law of Evidence §8.07[3][b] to [3][d], at 8-75 to 8-78.

Mr. Banks contends that Mr. Atilebawi’s statements to Officer Jones cannot qualify as

excited utterances because they were made in response to Officer Jones inquiring into what had

happened. We find little merit in this argument because “statements made in response to questions

may still be admissible if the declarant is under the excitement or stress of the event.” State v.

Gordon, 952 S.W.2d at 820-21; see also State v. Smith, 857 S.W.2d 1, 9 (Tenn. 1993). Simply

stated, “[t]he fact that a question prompted the excited answer is a circumstance relevant to stress,

but it does not automatically bar the statement’s admission” as an excited utterance. Tennessee Law

of Evidence §8.07[3][d], at 8-78.

Mr. Banks also argues that the statements cannot qualify as excited utterances because they

were made by Mr. Atilebawi to Officer Jones approximately four to six hours after the startling

event. We find little merit in this argument because the “length of time between a startling event 14

and the statement does not automatically preclude the statement’s being admissible as an excited

utterance.” Williams v. State, No. W2006-00605-CCA-R3-PC, 2007 WL 2120174, at *7 (Tenn.

Crim. App. July 24, 2007). In fact, “[t]he time interval is material only as a circumstance bearing

on the issue of continuing stress.” Tennessee Law of Evidence §8.07[3][d], at 8-77. 

Finally, Mr. Banks argues that Mr. Atilebawi did not make his statement to Officer Jones

while still under the stress of a startling event. As previously noted, if a statement is not made while

the declarant is under the stress of a startling event, then it cannot qualify as an excited utterance.
-13-

State v. Gordon, 952 S.W.2d at 820; State v. Samuel, 243 S.W.3d at 600; see also Tennessee Law

of Evidence §8.07[3][d], at 8-77 to 8-78. While the statements are not per se inadmissible because

they were made several hours after the startling event in response to Officer Jones’s questions, the

facts that they were responses to questions and that they were made several hours after the shooting

are relevant matters for the trial court to consider in assessingwhether Mr. Atilebawi remained under

the stress or excitement caused by his being shot four times by Mr. Banks. While not an exclusive

list, other relevant factors “include the nature and seriousness of the event or condition; the

appearance, behavior, outlook, and circumstances of the declarant, including such characteristics as

age and physical or mental condition; and the contents of the statement itself.” State v. Gordon, 952

S.W.2d at 820; State v. Smith, 870 S.W.2d 561, 574 (Tenn. 1993); Tennessee Law of Evidence

§8.07[3][d], at 8-77.

The trial court offered a detailed and persuasive analysis for its admission of Mr. Atilebawi’s

statements to Officer Jones as an excited utterance:

I don’t know how much more of a situation you could describe than

to have been shot four or five times and have your Uncle in the other

room shot, blood pouring out of your head and being asked who did

this. 

I think it’s still in the purview of all of the events that were

transpiring, the spontaneity of it may certainly still be there. This is

the first officer on the scene. He’s going up to the guy saying what

happened, who did this. This certainly [is an] excited utterance . . .

. [I]f a person in good health has had 30 minutes to sit and ponder it,

it may not be an excited utterance. But if an individual who has

undergone this sort of traumatic event is asked by the first officer on

the scene what happened, I think that the spontaneity and

trustworthiness and reliability [are] there . . . . 

Although we conclude that the dying declaration exception to the hearsay rule is not applicable, the

trial court’s analysis of the applicability of that exception bolsters its finding that this statement

constituted an excited utterance. The trial court stated the following:

[T]his guy had just been shot three times in the head. His Uncle had

been shot execution style in the other room and he had blood gushing

out of his head and he was undergoing all of this. . . . I think the

injuries were so severe . . . to the brain, to the head, . . . and to the

skull that it’s entirely plausible . . . that this person was giving this

information to a law enforcement officer, contemplating [the]

likelihood that he may not pull through. 

Officer Jones also offered the following testimony regarding Mr. Atilebawi’s condition:
Tenn. Const. art. I, § 9 (“[t]hat in all criminal prosecutions, the accused hath the right . . . to meet the 15

witnesses face to face”); U.S. Const. amend VI (that “[i]n all criminal prosecutions, the accused shall enjoy the right .

. . to be confronted with the witnesses against him”). 

-14-

When we actually got there, he was still on the couch and kind of in

a dazed, confused state. And we saw all the blood and immediately

we went ahead and started the paramedics to get over to treat him. .

. . He was just in shock and . . . just very, very disoriented and trying

to tell us that his Uncle was still in the other room . . . . 

The determination of whether to admit the statements made by Mr. Atilebawi to Officer

Jones is a discretionary one. Our review is limited to determining whether the trial court abused its

discretion regarding that particular inquiry. The nature of the event (being shot and left for dead

while having a close associate shot and killed in one’s home), the condition of the Mr. Atilebawi (in

shock and requiring urgent medical attention), and the nature of the statement (answering an officer’s

inquiry about what had happened) all strongly support the conclusion that Mr. Atilebawi was still

under the stress caused by the startling event. Under the facts and circumstances of this case, we

cannot conclude that the trial court abused its discretion in admitting Mr. Atilebawi’s statements to

Officer Jones under the excited utterance exception to the hearsay rule.

VII.

THE CONFRONTATION CLAUSE AND THE ADMISSION OF MR. ATILEBAWI’S STATEMENTS

TO OFFICER JONES

Mr. Banks insists that the trial court violated his constitutional rights under the Confrontation

Clauses of the state and federal constitutions by admitting into evidence Mr. Atilebawi’s statements 15

to Officer Jones. Mr. Banks argues that the statements were testimonial and that Mr. Atilebawi was

available to testify, thus the admission thereof violated his constitutional right of confrontation as

construed in Crawford v. Washington, 541 U.S. 36 (2004). The State responds that Mr. Banks’s

rights to confrontation were not violated because the statements were non-testimonial and because

Mr. Atilebawi, the declarant, testified at trial. The Court of Criminal Appeals found that there was

no violation of Mr. Banks’s right to confront the witnesses against him. We affirm the determination

of the Court of Criminal Appeals.

The United States Supreme Court, interpreting the Sixth Amendment in Crawford v.

Washington, noted that “when the declarant appears for cross-examination at trial, the Confrontation

Clause places no constraints at all on the use of his prior testimonial statements.” Crawford v.

Washington, 541 U.S. at 59 n. 9. The Court added that the Confrontation Clause “does not bar

admission of a statement so long as the declarant is present at trial to defend or explain it.” Crawford

v. Washington, 541 U.S. at 59 n. 9. Article I, section 9 of the Tennessee Constitution does not

require a different conclusion. Mr. Atilebawi was available and in fact was cross-examined by Mr.

Banks “face to face.” Mr. Banks was not deprived of his right to confront Mr. Atilebawi, and his

contention otherwise is wholly without merit.
Mr. Banks specifically questions the portion of the translation of Mr. Atilebawi’s testimony regarding Mr.

16

Atilebawi’s personal use of marijuana. He insists that he had no way to challenge the impartiality of the interpreter or

the accuracy of the translation because an Arabic language interpreter had not been assigned specifically to the defense.

-15-

VIII.

THE ARABIC LANGUAGE INTERPRETER

Mr. Banks insists that the trial court’s use of a non-credentialed Arabic language interpreter

violated his federal and state due process rights and hisright to confront the witnesses against him.16

Specifically, he asserts that the trial court erred by failing to follow the procedures for the use of noncredentialed interpreters required by Tenn. Sup. Ct. R. 42, § 3(e) and (f). Even though Mr. Banks

did not object to the interpreter’s qualifications at trial and failed to include this issue in his motion

for new trial, the Court of Criminal Appeals determined that the trial court did not commit plain error

with regard to the use of the Arabic language interpreter. We agree.

A.

The guilt phase of the trial began on April 6, 2005, with Mr. Atilebawi as the State’s first

witness. Before Mr. Atilebawi began to testify, the following colloquy occurred between the trial

court and Alladin Ghanem, the Arabic language interpreter:

THE COURT: And let me ask a couple of questions of you for the

record. Your name is Mr. Ghanem; correct?

THE INTERPRETER: Yes.

THE COURT: You are certified by the State of Tennessee as a

translator/interpreter for court proceedings; is that correct?

THE INTERPRETER: Yes. Yes, Your Honor.

THE COURT: And specifically in Arabic language?

THE INTERPRETER: Yes.

THE COURT: And in a variety of dialects of the Arabic language;

correct?

THE INTERPRETER: Yes, sir.

THE COURT: Including the Iraqi language and dialect and idioms

and related matters?

THE INTERPRETER: I have record here also in the state of Shelby

County of doing this for over 15 years.
See http://tscaoc.tsc.state.tn.us/geninfo/Programs/Interpreters/rosterindex.htm. 

17

-16-

Mr. Banks did not request further voir dire regarding Mr. Ghanem’s qualifications, and he did not

object to the use of Mr. Ghanem as the interpreter during the trial. In addition, Mr. Banks did not

take issue with the qualifications or use of Mr. Ghanem in his motion for new trial.

B.

When a defendant raises an issue for the first time on appeal, the issue will generally be

deemed waived and will be considered only within the limited parameters of an appellate court’s

discretionary plain error review. State v. Faulkner, 154 S.W.3d 48, 58 (Tenn. 2005); State v.

Maddin, 192 S.W.3d 558, 561 (Tenn. Crim. App. 2005); see also Tenn. R. App. P. 3 (e); Tenn. R.

App. P. 36(a); Tenn. R. Crim. App. 52(b). The defendant bears the burden of persuading the

appellate court that the trial court committed plain error and that the error was of sufficient

magnitude that it probably changed the outcome of the trial. State v. Bledsoe, 226 S.W.3d 349, 354-

55 (Tenn. 2007). Under plain error review, relief will only be granted when five prerequisites are

met: (1) the record clearly establishes what occurred in the trial court, (2) a clear and unequivocal

rule of law was breached, (3) a substantial right of the accused was adversely affected, (4) the

accused did not waive the issue for tactical reasons, and (5) consideration of the error is necessary

to do substantial justice. State v. Gomez, 239 S.W.3d 733, 737 (Tenn. 2007).

C.

Notwithstanding Mr. Ghanem’s statement that he was a certified Arabic language interpreter,

Mr. Banks asserts on appeal that Mr. Ghanem is not a certified or registered Arabic language

interpreter and asks the appellate court to take judicial notice of this fact. The Court of Criminal

Appeals did not address this argument directly. Instead, the court accredited Mr. Ghanem’s

uncontradicted statement that he was a certified Arabic language interpreter and, therefore, held that

the trial court was not required to comply with the requirements of Tenn. Sup. Ct. R. 42, § 3(e) and

(f).

The Administrative Office of the Courts issues photographic identification cards to

interpreters who are either certified or registered in accordance Tenn. Sup. Ct. R. 42 and also

maintains a current listing of all certified and registered interpreters on its website. Accordingly, 17

in cases requiring an interpreter, it is advisable for the courts and the litigants to verify the

interpreter’s status by requesting him or her to produce the identification card or by consulting the

Administrative Office of the Courts’s website. In circumstances where an interpreter is either noncredentialed or is unable to demonstrate that he or she is credentialed, the court should then follow

the procedures mandated by Tenn. Sup. Ct. R. 42, § 3(e) and (f). 

Based on the record in this case, we cannot find that the trial court erred, much less

committed plain error, by failing to follow the procedures set forth in Tenn. Sup. Ct. R. 42 § 3(e) and

(f). Mr. Ghanem stated that he was certified by the State of Tennessee. Mr. Banks did not challenge

this assertion or request further voir dire of Mr. Ghanem. The trial court believed that Mr. Ghanem

was a certified interpreter. Accordingly, based on the information available at the time, Tenn. Sup.
While not critical to our evaluation of the arguments presented herein, it is, nevertheless, a matter of at least

18

some relevance to the discussion of Mr. Ghanem as an interpreter that the overwhelming majority of Mr. Atilebawi’s

examinations, both by the prosecution and by the defense, required no translation. The examinations were conducted

in English, including the discussion of the actual offense and identification of Mr. Banks as the perpetrator.

Tenn. Sup. Ct. R. 42 cmt. states that two interpreters may be used in lengthy proceedings to enable the 19

interpreters to take breaks and to facilitate attorney-client communications during a court proceeding.

-17-

Ct. R. 42 § 3(e) and (f) were inapplicable. It would be utterly nonsensical to find that a trial court

erred by failing to follow the procedures required for utilizing a non-credentialed interpreter when

the trial court believed, without any objection from the defendant, that it was utilizing a certified

interpreter. 

18

The use an interpreter who is neither certified nor registered is not reversible error in and of

itself. It may rise to the level of reversible error only in circumstances where a certified or registered

interpreter was readily available and where the use of the non-credentialed interpreter undermined

the fairness of the proceeding in some way. This record does not indicate that a certified or

registered Arabic language interpreter was readily available or that Mr. Ghanem’s translation

somehow undermined the fairness of the proceeding. 

It is difficult for this Court to discern whether Mr. Banks is also making the separate

argument in his appellate brief that the trial court erred by failing to appoint a second interpreter to

verify the accuracy of Mr. Ghanem’s translation for Mr. Banks and his attorney, neither of whom

speak Arabic. Nonetheless, we have considered this argument, and we conclude that the trial court’s

failure to appoint a second interpreter for this purpose was not error. While Tenn. Sup. Ct. R. 42,

§ 3(g) permits the use of multiple interpreters, the rule does not explicitly authorize the appointment

of a second interpreter for the purpose of assessing the accuracy of the first interpreter. Because

19

Mr. Banks never requested a second interpreter for this purpose or any other purpose, the trial court

did not err, much less commit plain error, by failing to appoint a second interpreter to review the

translation of the first interpreter.

IX.

THE TRIAL COURT’S FAILURE TO INTERVIEW THE JURORS TO ASCERTAIN WHETHER

THEY HAD BEEN INFLUENCED BY A FORMER JUROR

Mr. Banks takes issue with the trial court’s handling of a juror who was excused before the

jury began its deliberations on the penalty phase of the trial. Even though he did not raise this issue

in the trial court or the Court of Criminal Appeals, he insists that the trial court committed plain error

by not immediately removing the juror and by failing to question the remaining jurors to ascertain

whether they had been influenced by the former juror. We have determined that the trial court did

not commit plain error by failing to dismiss the juror immediately or by failing to interview the jury

on its own motion as to the existence of potential prejudice either after it excused the juror or after

the jury returned its verdict. 

We reiterate that while the decisions of the Court of Criminal Appeals and the Court of

Appeals may require the parties to reframe their issues or to adjust their arguments when they seek
-18-

review by this Court, litigants are not free simply to reserve issues until their case reaches this Court.

When a defendant fails to present an issue on appeal to the Court of Criminal Appeals, that issue is

not properly before this Court and is, instead, waived. See State v. Butler, 108 S.W.3d 845, 854

(Tenn. 2003); State v. Hall, 8 S.W.3d 593, 596 n.1 (Tenn. 1999); State v. Buggs, 995 S.W.2d 102,

109 (Tenn. 1999). Nonetheless, we have determined that the interests ofjustice prompt us to address

this issue to determine whether the trial court committed plain error by not interviewing the jury.

A.

During a break in the trial on April 8, 2005, Mr. Banks’s trial counsel informed the trial court

that Dorothy Rooks, a member of the jury venire for Mr. Banks’s trial who had not been seated on

the jury, informed one of the defense investigators, a friend of Ms. Rooks, that juror William Stroud

had made a disturbing comment to her about the case prior to the trial. According to Mr. Banks’s

lawyer, Ms. Rooks told the investigator that Mr. Stroud commented that he was “hoping that he

would end up on this jury so that he could convince people to find him guilty and we’d be out by the

weekend.” The trial court expressed concern about the comment and decided to conduct a jury-out

hearing to hear directly from Ms. Rooks. 

Later that day, after the State rested its case-in-chief, Ms. Rooks appeared in court and, with

the jury excused, recounted what she had heard. Ms. Rooks stated that Mr. Stroud expressed

disappointment about not having been selected as a juror in a different case in which she and Mr.

Stroud had both been members of the jury venire. Specifically, Ms. Rooks recalled that Mr. Stroud

stated “I was going to drive that sucker.” Ms. Rooks indicated that Mr. Stroud appeared to be

adamant, but she was not sure exactly what Mr. Stroud meant. She indicated that the other case was

also a first degree murder case but not a capital case. Ms. Rooks stated that she became concerned

when she learned that Mr. Stroud had been selected as a juror in Mr. Banks’s case. She volunteered

that “I just thought that it didn’t seem like it was a jury of his peers. I mean, there was only one

black lady there.” 

After commenting on how it had been impressed with Mr. Stroud based upon his answers

during voir dire and his attentiveness during the proceedings, the trial court asked the bailiffs

whether they had observed anything that suggested that Mr. Stroud was interested in railroading Mr.

Banks. After the bailiffs responded in the negative, the trial court informed the attorneys that it

would need to consider how to address this matter. The trial court also stated that questioning Mr.

Stroud about a “casual statement he made [about another case] on the sidewalk while smoking a

cigarette” could be counterproductive. 

Later the same day, the court again addressed the matter of Mr. Stroud. The trial court stated:

I have a little bit of concern, I have to be honest with you, that [Ms.

Rooks’s] greater concern might be the racial make-up of the jury

because she let – she made that statement under oath when she

testified today. And I don’t know why that statement would be

relevant to the issue we were discussing and for which she came

down here, unless it was really bubbling right beneath the surface and
-19-

it finally came out when she took the stand. And that, perhaps, is the

overriding reason[] for her lodging the complaint. I’m concerned

about that.

Nevertheless, the trial court decided the more prudent course would be to replace Mr. Stroud with

an alternate juror. This took place when the trial court excused the other alternate jurors before the

jury deliberations began. Outside the presence of the other jurors, the trial court explained its

reasoning directly to Mr. Stroud:

There was a juror that was on this larger panel . . . [who] overheard

a remark that was attributed to you outside this building after the

close of court or y’all had been excused [from the jury venire for a

different trial]. . . . [T]he question having been raised by this juror

concerning that remark and how it may affect your impartiality in this

case was such that after agonizing over whether to remove you from

the jury or not, I felt that just out of an abundance of caution so that

no question could be raised in the event that the jury finds Mr. Banks

guilty, that I would insert the alternate and remove you from the jury.

Mr. Stroud was excused prior to and did not participate in the jury deliberations in this case.

Essentially, he became the equivalent of an excused alternate juror. Mr. Banks did not request the

trial court to interview the jury when it dismissed Mr. Stroud before deliberations started and,

likewise, did not request the trial court to interview the jury after it returned a guilty verdict to

ascertain whether the verdict had been influenced by Mr. Stroud’s presence. Therefore, our review

of the process the trial court used to excuse Mr. Stroud is for plain error.

B.

Mr. Banks’s arguments on this issue provide neither a logically nor a legally supported basis

for finding error, much less plain error, in the trial court’s failure to immediately excuse Mr. Stroud

after hearing Ms. Rooks’s testimony regarding his comments in another, unrelated case. As far as

this record shows, the trial court had no basis to be concerned about Mr. Stroud’s presence on the

jury before Mr. Banks’s trial counsel expressed concern about statements he had purportedly made

to Ms. Rooks.

Because the report of Mr. Stroud’s comments was second-hand, the trial court decided to hear

directly from Ms. Rooks before deciding whether remedial action was warranted. When the trial

court questioned Ms. Rooks, it became apparent that the statements attributed to Mr. Stroud did not

involve Mr. Banks’s case, as was originally represented, but rather an earlier, unrelated case in

another court. Rather than excusing Mr. Stroud immediately, the trial court allowed the lawyers to

make their final arguments and then charged the jury before it replaced Mr. Stroud with an alternate

juror.

We decline to find plain error with regard to the timing of Mr. Stroud being excused from

the jury. The presentation of the evidence was essentially completed when the defense raised a
Mr. Banks’s brief uses the verb “poll” rather than the verb “interview.” “Polling” the jury relates to

20

questioning the jury after the verdict as to whether they concur with the verdict. The context of the use of the verb “poll”

in Mr. Banks’s brief indicates that the term connotes interviewing the jury either before or after the verdict. Accordingly,

we have chosen to substitute the verb “interview” for “poll.” Lovell v. McCullough, 222 Tenn. 567, 575-78, 439 S.W.2d

105, 108-10 (1969); Dixon Stave & Heading Co. v. Archer, 40 Tenn. App. 327, 334-40, 291 S.W.2d 603, 607-10 (1956);

6 Wayne R. LaFave et al., Criminal Procedure § 24.9(e), at 522-24 (3d ed. 2007).

-20-

concern about Mr. Stroud. After the trial court interviewed Ms. Rooks, the jury was alone together

for only one additional brief break before the trial court completed its charge to the jury and replaced

Mr. Stroud with an alternate juror. Accordingly, we decline to find the trial court committed plain

error by waiting to excuse Mr. Stroud until immediately before the jury retired to deliberate.

By the same token, we decline to find that the trial court committed plain error by not

interviewing the other jurors, either before they retired or following their verdict to ascertain 20

whether they had been influenced by Mr. Stroud’s presence on the jury. Mr. Banks did not request

the trial court to interview the jurors following Ms. Rooks’s testimony and cites no authority

requiring the trial court to do so on its own motion. He has failed to demonstrate that the trial court’s

failure to interview the jurors prior to deliberations violated a clear and unequivocal rule of law or

adversely affected one of his substantial rights. Accordingly, we decline to find that the trial court

committed plain error by failing to interview the jurors prior to their deliberations.

In the same vein, we decline to find that the trial court committed plain error by not

interviewing the jurors following the verdict to determine whether they had been improperly

influenced by Mr. Stroud. Defendants in criminal cases have a statutory right to have the jury polled

upon request. Tenn. Code Ann. § 20-9-508 (1994). However, they waive this right if they fail to

make a timely request that the jury be polled. Rice v. State, 4 Tenn. Crim. App. 600, 605, 475

S.W.2d 178, 180 (1971). Mr. Banks has failed to demonstrate that the trial court’s failure to

interview the jurors regarding Mr. Stroud after they returned their verdict violated a clear and

unequivocal rule of law or adversely affected one of his substantial rights. 

X.

THE TRIAL COURT’S FAILURE TO CHARGE CERTAIN LESSER-INCLUDED OFFENSES

Mr. Banks argues that the trial court violated his constitutional rights by failing to charge

certain lesser-included offenses. Mr. Banks requested some, but not all, of these charges at trial.

The State asserts that these arguments have either been waived or are not meritorious. The Court

of Criminal Appeals found no reversible error. We affirm that decision.

A.

Mr. Banks was indicted on four counts. He requested the trial court to charge the jury

regarding forty-five lesser-included offenses of these offenses. In addition to charging the jury

regarding the four offenses for which Mr. Banks was indicted, the trial court charged the jury with

nineteen of the forty-five requested lesser-included offense instructions. The jury convicted Mr.

Banks of the greatest charge for each count of the four-count indictment. On appeal, Mr. Banks

insists that the trial court committed reversible error by failing to give instructions regarding twenty-
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six lesser-included offenses. Mr. Banks requested ten of these instructions at trial. He no longer

takes issue on appeal with the trial court’s failure to charge sixteen lesser-included offenses he

requested at trial. However, for the first time on appeal, he insists that the trial court should have

charged sixteen other lesser-included offenses that he had not requested at trial. Our review of the

trial court’s failure to charge the latter sixteen instructions is for plain error. 

Neither the State nor Mr. Banks have offered detailed legal arguments regarding whether

each of the purported lesser-included offenses qualify as lesser-included offenses under the Burns

test. Thus, we will assume for purposes of this opinion that the offenses enumerated by Mr. Banks

meet the requirements to qualify as lesser-included offenses. Nevertheless, we find that the trial

court did not commit reversible error by failing to charge the jury regarding the twenty-six lesserincluded offenses referenced in Mr. Banks’s brief.

B.

Whether a particular instruction regarding a lesser-included offense should have been given

is a mixed question of law and fact. State v. Hatfield, 130 S.W.3d 40, 41 (Tenn. 2004). We review

mixed questions of law and fact de novo with no presumption of correctness. Carpenter v. State, 126

S.W.3d 879, 892 (Tenn. 2004). When called upon to address a purported failure to charge lesserincluded offenses, the reviewing court considers the following three questions: (1) whether the

offense is a lesser-included offense; (2) whether the evidence supports a lesser-included offense

instruction; and (3) whether the failure to give the instruction is harmless error. State v. Allen, 69

S.W.3d 181, 187 (Tenn. 2002).

This Court fashioned the test for determining whether an offense is a lesser-included offense

in State v. Burns, 6 S.W.3d 453 (Tenn. 1999). 

An offense is a lesser-included offense if: 

(a) all of its statutory elements are included within the statutory

elements of the offense charged; or

(b) it fails to meet the definition in part (a) only in the respect that it

contains a statutory element or elements establishing

(1) a different mental state indicating a lesser kind of

culpability; and/or

(2) a less serious harm or risk of harm to the same person,

property or public interest; or

(c) it consists of

(1) facilitation of the offense charged or of an offense that

otherwise meets the definition of lesser-included offense in

part (a) or (b); or
As discussed below, this limitation applies to attempt and solicitation.

21

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(2) an attempt to commit the offense charged or an offense

that otherwise meets the definition of lesser-included offense

in part (a) or (b); or

(3) solicitation to commit the offense charged or an offense

that otherwise meets the definition of lesser-included offense

in part (a) or (b).

State v. Burns, 6 S.W.3d at 466-67. Where “a lesser offense is not included in the offense charged,

then an instruction should not be given, regardless of whether evidence supports it.” State v. Burns,

6 S.W.3d at 467. Thus, if the purported lesser-included offense is not actually a lesser-included

offense, then the court’s inquiry ends. 

If, however, “a lesser offense is included in the charged offense, the question remains

whether the evidence justifies a jury instruction on such lesser offense.” State v. Burns, 6 S.W.3d

at 467. As for the standard for assessing whether the evidence is sufficient to require an instruction

on a lesser-included offense, Tenn. Code Ann. § 40-18-110(a) (2006) provides that 

the trial judge shall not instruct the jury as to any lesser included

offense unless the judge determines that the record contains any

evidence which reasonable minds could accept as to the lesser

included offense. In making this determination, the trial judge shall

view the evidence liberally in the light most favorable to the existence

of the lesser included offense without making any judgment on the

credibility of evidence. The trial judge shall also determine whether

the evidence, viewed in this light, is legally sufficient to support a

conviction for the lesser included offense.

As a general matter, evidence that is sufficient “to warrant an instruction on the greater offense also

will support an instruction on a lesser offense under Part (a) of the Burns test.” State v. Allen, 69

S.W.3d at 188.

In subsequent decisions, this Court has narrowed the application of Part (c) of the Burns test

by clarifying that instructions are unnecessary where the evidence clearly establishes completion of

the criminal act or simply does not involve proof of solicitation or facilitation. State v. Wilson, 211 21

S.W.3d 714, 721 n.2 (2007); State v. Robinson, 146 S.W.3d at 487 n.7; see also State v. Marcum,

109 S.W.3d 300, 303-04 (Tenn. 2003); State v. Ely, 48 S.W.3d 710, 719 (Tenn. 2001). This result

follows because for the “lesser offenses under part (c), proof of the greater offense will not

necessarily prove the lesser offense.” State v. Allen, 69 S.W.3d at 188.

The failure to give an instruction on an offense that is, in fact, a lesser-included offense and

is supported by the evidence is a non-structural constitutional error. State v. Page, 184 S.W.3d 223,

230 (Tenn. 2006). When such a failure occurs, a new trial must be granted unless the reviewing

court determines that error was harmless beyond a reasonable doubt. State v. Thomas, 158 S.W.3d
See Act of May 24, 2001, ch. 338, 2001 Tenn. Pub. Acts 708, 709. 22

State v. Page, 184 S.W.3d at 229. 23

-23-

at 379; see also State v. Rodriguez, 254 S.W.3d 361, 371 (Tenn. 2008). When undertaking a

harmless error analysis in this context, the reviewing court “should conduct a thorough examination

of the record, including the evidence presented at trial, the defendant’s theory of defense, and the

verdict returned by the jury.” State v. Allen, 69 S.W.3d at 191.

There are two approaches for demonstrating that a failure to give an instruction on a lesserincluded offense is harmless error. State v. Locke, 90 S.W.3d 663, 675 (Tenn. 2002). The first

approach is implicated where the trial court instructs the jury as to the charged offense as well as

other lesser-included offenses thereof but does not instruct the jury regarding all of the lesserincluded offenses supported by the evidence. When the jury convicts the defendant of the greater

charged offense rather than the lesser-included offense or offenses, the jury necessarily rejects all of

the other lesser offenses. State v. Locke, 90 S.W.3d at 672; State v. Allen, 69 S.W.3d at 191; State

v. Williams, 977 S.W.2d 101, 106 (Tenn. 1998). Where one of the charged but rejected lesserincluded offenses is an intermediate or buffer offense standing between the errantly omitted lesserincluded offense and the offense for which the defendant was convicted, the charging error is shown

to be harmless beyond a reasonable doubt. State v. Locke, 90 S.W.3d at 675; State v. Allen, 69

S.W.3d at 190. 

The second approach requires the reviewing court to consider the evidence and then to decide

“whether a reasonable jury would have convicted the defendant of the lesser-included offense instead

of the charged offense.” State v. Richmond, 90 S.W.3d 648, 662 (Tenn. 2002) (emphasis in

original). If no reasonable jurywould have convicted the defendant of the uncharged lesser-included

offense rather than the offense for which the defendant was convicted, then the failure to charge is

harmless beyond a reasonable doubt. State v. Locke, 90 S.W.3d at 675. 

For all trials conducted on or after January 1, 2002, the defendant must file a written request 22

for an instruction on a lesser-included offense as a prerequisite to taking issue on appeal with the

failure to give an instruction on the offense. Failure to request in writing an instruction on a lesserincluded offense results in a waiver of a right to take issue on appeal with the omission of the charge.

Tenn. Code Ann. § 40-18-110(c).

However, because defendants have a constitutional right to a correct and complete charge of

the law applicable to their case, a reviewing court may review the instructions to determine whether 23

the trial court committed plain error by failing to instruct on a lesser-included offense, even if an

instruction on the offense was not requested in writing. State v. Wilson, 211 S.W.3d at 720-21; State

v. Page, 184 S.W.3d at 230-31. Under plain error review, relief will be granted only where five

prerequisites are met: (1) the record clearly establishes what occurred in the trial court; (2) a clear

and unequivocal rule of law was breached; (3) a substantial right of the accused was adversely

affected; (4) the accused did not waive the issue for tactical reasons; and (5) consideration of the

error is necessary to do substantial justice. State v. Gomez, 239 S.W.3d at 737. Furthermore, on a

review for plain error, the defendant bears the burden of persuading the appellate court that the error
“If the offense solicited did occur, . . . the defendant may not be convicted of both the solicitation and the 24

completed offense. The solicitation is merged with the completed offense, and the offender may be guilty of the

completed offense under § 39-11-402.” Tenn. Code Ann. § 39-12-102 (1997) (Tenn. Sentencing Comm’n cmt.).

-24-

was of sufficient magnitude that its commission probably changed the outcome of the trial. State

v. Bledsoe, 226 S.W.3d at 354-55. To rise to the level of plain error, “[a]n error would have to [be]

especially egregious in nature, striking at the very heart of the fairness of the judicial proceeding.”

State v. Page, 184 S.W.3d at 231.

C.

The Attempt or Solicitation Offenses

Mr. Banks contends that the trial court committed reversible error by failing to charge ten

attempt or solicitation offenses as lesser-included offenses of premeditated first degree murder, first

degree murder in the perpetration of a robbery, and especially aggravated robbery. With regard to

his first degree premeditated murder conviction, Mr. Banks asserts that the jury should have been

instructed regarding attempted first degree murder, attempted second degree murder, and attempted

voluntary manslaughter. As to his first degree murder in the perpetration of a robbery conviction,

Mr. Banks claims error in failing to charge the “requisite attempt offenses.” In relation to his

especially aggravated robbery conviction, Mr. Banks argues that the trial court should have charged

the jury as to solicitation to commit attempted especially aggravated robbery, solicitation to commit

attempted aggravated robbery, solicitation to commit attempted robbery, attempted especially

aggravated robbery, attempted aggravated robbery, and attempted robbery. He requested instructions

for three of these ten offenses: attempted especially aggravated robbery, attempted aggravated

robbery, and attempted robbery. Our review ofthe remaining seven attempt/solicitation charges will

be limited to a review for plain error. 

In our post-Burns decisions, this Court has narrowed the circumstances when it is error to

not charge attempt, solicitation, and facilitation offenses which qualify as lesser-included offenses

under Part (c) of the Burns test. With regard to attempt and solicitation, both of which are inchoate 24

offenses, where the evidence clearly establishes the completion of the crime, it is unnecessary for

the trial court to charge the jury as to attempt or solicitation. State v. Robinson, 146 S.W.3d at 487

n.7 (noting that “instructions are not required on either solicitation or attempt where the evidence

clearly establishes completion of the charged offense”);see also State v. Wilson, 211 S.W.3d at 721

n.2; State v. Marcum, 109 S.W.3d at 303-04; State v. Ely, 48 S.W.3d at 719. 

The State presented evidence that clearly established the completion of all four of the charged

offenses. Mr. Al-Maily was dead. Mr. Atilebawi sustained serious bodily injuries. Messrs. AlMaily’s and Atilebawi’s property was taken. Mr. Banks neither presented evidence nor elicited

testimony on cross-examination suggesting the applicability of attempt or solicitation to the

premeditated first degree murder, first degree murder in the perpetration of a robbery, or especially

aggravated robbery counts. In other words, the evidence did not involve crimes that were attempted

or solicited but were not completed. Accordingly, we find no error, much less plain error, in the trial

court’s failure to give the ten attempt and solicitation charges referenced by Mr. Banks on appeal as
In addition to charging the jury as to first degree premeditated murder, the trial court also charged the jury

25

as to facilitation of first degree murder, murder in the second degree, facilitation of second degree murder, voluntary

manslaughter, facilitation of voluntary manslaughter, and reckless homicide. With regard to the first degree murder in

the perpetration of a robbery count, the trial court also charged the jury as to facilitation of first degree murder, second

degree murder, and reckless homicide. As for the charge of criminal attempt to commit first degree murder, the trial

court also charged the jury with facilitation to commit attempted first degree murder, attempted second degree murder,

facilitation to commit second degree murder, criminal attempt to commit voluntary manslaughter, and facilitation to

commit voluntary manslaughter. Finally, in addition to charging the jury as to especially aggravated robbery, the trial

court also charged the jury as to especially aggravated robbery, aggravated robbery, facilitation of aggravated robbery,

robbery, and facilitation to commit robbery.

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lesser-included offenses of premeditated first degree murder, first degree murder in the perpetration

of a robbery, and especially aggravated robbery, respectively.

D.

The Omission of Lesser-Included Offenses Rendered Harmless

by the Conviction of the Greater Offense

Mr. Banks also contends that the trial court committed reversible error by failing to charge

the jury regarding (1) criminally negligent homicide and reckless endangerment, (2) facilitation to

commit second degree murder, reckless homicide, and criminally negligent homicide as well as

reckless endangerment and criminally negligent homicide, (3) aggravated assault, facilitation of

aggravated assault, attempted aggravated assault, assault, and reckless endangerment, and (4) theft,

as lesser-included offenses of first degree premeditated murder, first degree murder in the

perpetration of a robbery, criminal attempt to commit first degree murder, or especially aggravated

assault. Mr. Banks requested instructions regarding six of these thirteen offenses. Specifically, he

requested the trial court to instruct the jury regarding criminally negligent homicide and reckless

endangerment with regard to the first degree premeditated murder count, facilitation to commit

second degree murder and criminally negligent homicide in relation to the first degree murder in the

perpetration of a robbery count, reckless endangerment with regard to the criminal attempt to commit

first degree murder count, and theft as a lesser-included offense of especially aggravated assault.

Because Mr. Banks did not request the trial court to charge the other lesser-included offenses, our

review regarding these offenses will be for plain error. 

For each of the four counts charged in the indictment, the trial court charged the jury with

lesser-included offenses including intermediate offenses, buffer offenses standing between the charge

Mr. Banks asserts the trial court erred by failing to instruct the jury upon and the charge for which

Mr. Banks was convicted. Accordingly, any potential error in failing to charge the eleven above- 25

referenced lesser-included offenses was shown to be harmless error beyond a reasonable doubt

through the jury’s finding that Mr. Banks was guilty of the greater offense and rejection of the

intermediate lesser-included offenses. State v. Locke, 90 S.W.3d at 675; State v. Allen, 69 S.W.3d

at 190; State v. Williams, 977 S.W.2d at 106.

E.

The Omission of Lesser-Included Offenses For Which

No Reasonable Jury Would Have Convicted Mr. Banks
Tenn. Code Ann. § 39-13-202(d). 26

Tenn. Code Ann. § 39-13-211 (1997). 27

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Mr. Banks also contends that the trial court erred by failing to charge the jury regarding

voluntary manslaughter and facilitation to commit voluntary manslaughter as lesser-included

offenses of first degree murder in the perpetration of a robbery. He did not request either instruction.

Thus, our review of the failure to charge these offenses is limited to plain error review. 

Mr. Banks bears the burden of demonstrating the failure to give the voluntary manslaughter

and facilitation to commit voluntary manslaughter charges was an error ofsufficient magnitude that

it probably changed the outcome of trial. State v. Bledsoe, 226 S.W.3d at 354-55. He has not carried

this burden, and, in fact, the record demonstrates conclusively that these instructions would have

been of no consequence.

The trial court charged the jury regarding the lesser-included offense charges of voluntary

manslaughter and facilitation of voluntary manslaughter in connection with the premeditated first

degree murder count. The jury rejected these lesser-included offenses in favor of finding Mr. Banks

guilty of premeditated first degree murder. Thus, the jury concluded that Mr. Banks was

“sufficiently free from excitement and passion as to be capable of premeditation,” when he shot 26

Mr. Al-Maily rather than acting with “adequate provocation sufficient to lead a reasonable person

to act in an irrational manner.” Accordingly, the trial court did not commit plain error in failing 27

to instruct the jury as to voluntary manslaughter and facilitation to commit voluntary manslaughter

as lesser-included offenses of first degree murder in the perpetration of a robbery.

Finally, Mr. Banks argues that the trial court erred by failing to instruct the jury regarding

aggravated assault as a lesser-included offense of especially aggravated robbery. He requested this

instruction. Therefore, our review assesses whether a reasonable jury would have convicted Mr.

Banks of aggravated assault instead of especially aggravated robbery. On this question, the State

bears the burden of demonstrating that the error was harmless beyond a reasonable doubt.

The trial court instructed the jury regarding several underlying offenses related to robbery

which the jury rejected in favor of the greater charge, especially aggravated robbery. The variation

between these lesser-included offenses, the offense for which Mr. Banks was convicted, and the

offense to which Mr. Banks assigns error in the trial court’s failure to charge the jury is the robbery

component. Robbery, under Tennessee law, “is the intentional or knowing theft of property from

the person of another by violence or putting the person in fear.” Tenn. Code Ann. § 39-13-401(a)

(1997). Based on the overwhelming evidence of Mr. Banks’s deprivation of Mr. Atilebawi of his

property through violence including Mr. Atilebawi’s testimony, both of Mr. Banks’s confessions,

the police recovering Mr. Atilebawi’s property in Mr. Banks’s possession, and the absence of

countervailing evidence, we conclude that no reasonable jury would have found Mr. Banks guilty

of aggravated assault rather than especially aggravated robbery. Accordingly, we conclude that any

error in failing to charge this lesser-included offense was harmless beyond a reasonable doubt.
The State is mistaken on this point. In his amended motion for new trial, Mr. Banks asserted that the trial 28

court erred “in not providing a curative instruction during the penalty phase correcting the prosecutor’s misstatements

regarding mitigating factors during the state’s closing argument.” 

The United States Supreme Court has noted that argument between the defendant and counsel for the Crown

29

was an essential part of English criminal trials. As other procedural protections developed, the importance of argument

was neither discarded nor diluted. Rather, the primary function of argument shifted to summation of the evidence at the

close of the trial. Herring v. New York, 422 U.S. at 860-61.

-27-

XI.

THE JURY INSTRUCTION WITH REGARD TO VICTIM IMPACT EVIDENCE

After careful study of the parties’ briefs with regard to the issue of the coercive effect of the

instruction regarding the consideration of victim impact evidence, we are persuaded that the decision

of the Court of Criminal Appeals on this issue should be affirmed. Moreover, because we find that

the opinion of the Court of Criminal Appeals, State v. Banks, 2007 WL 1966039, at *38-40

adequately states the facts and the law on this issue, we adopt this portion of the opinion as the

opinion of this Court and include it as an appendix to this opinion.

XII.

THE PROSECUTORS’ CLOSING ARGUMENTS DURING THE GUILT PHASE 

OF THE TRIAL

Mr. Banks claims that the prosecutors made six statements during their closing arguments

that require a reversal of his convictions. The State responds that Mr. Banks did not object to several

of these statements during trial and that Mr. Banks did not mention any of these statements in his

motion for new trial. The Court of Criminal Appeals reviewed each of these statements and 28

determined either (1) that they were not error, (2) that the trial court gave appropriate curative

instructions, or (3) that the instruction was not so prejudicial as to require reversal of the conviction.

A.

Closing arguments have special importance in the adversarial process. Their purpose is to

sharpen and to clarify the issues that must be resolved in a criminal case. Herring v. New York, 422

U.S. 853, 862 (1975). They accomplish this purpose by enabling the opposing lawyers to present

their theory of the case and to point out the strengths and weaknesses in the evidence to the jury.

Christian v. State, 555 S.W.2d 863, 866 (Tenn. 1977); 11 David L. Raybin, Tennessee Practice:

Criminal Practice and Procedure § 29.01, at 72 (1985) (“Tennessee Criminal Practice and

Procedure”). Thus, both the State and the defendant have an ancient right to make closing 29

arguments. See Tenn. R. Crim. P. 29.

The lawyers representing the defendant and the State in a criminal trial are expected to be

zealous advocates. Burlison v. State, 501 S.W.2d 801, 806 (Tenn. 1973) (noting that “the State is

entitled to advocacy, as well as the defendant”). Their closing arguments provide them with an

opportunity to persuade the jury, Tennessee Criminal Practice and Procedure § 29.2, at 73, and thus

they should be given great latitude in both the style and the substance of their arguments. Post v.
-28-

State, 580 S.W.2d 801, 808 (Tenn. Crim. App. 1978); 6 Wayne R. LaFave et al. Criminal Procedure

§ 24.7(b), at 456 (3d ed. 2007) (“Criminal Procedure”). Closing arguments in criminal cases have

a “rough and tumble quality” about them, State v. Skakel, 888 A.2d 985, 1060-61 (Conn. 2006),

because they are traditionally the one place in the trial where the lawyers are given the greatest

leeway in their manner of expression. Criminal Procedure § 24.7(b), at 456-57. 

Prosecutors are expected to pursue their cases with thoroughness and vigor within the bounds

of the law and professional conduct. State v. Culbreath, 30 S.W.3d 309, 314 (Tenn. 2000); Judge

v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976). While the interests of the State are their

paramount concern, their actions must be tempered by their impartial search for justice and their

obligation to see to it that the defendant receives a fair trial. State v. White, 114 S.W.3d 469, 477

(Tenn. 2003); Burlison v. State, 501 S.W.2d at 806; Watkins v. State, 140 Tenn. 1, 5, 203 S.W. 344,

345 (1918). In the words of Justice Sutherland, while prosecutors “may strike hard blows, . . . [they

are] not at liberty to strike foul ones.” Berger v. United States, 295 U.S. 78, 88 (1935).

A prosecutor’s closing arguments have great weight on jurors. Knight v. State, 190 Tenn.

326, 332, 229 S.W.2d 501, 503 (1950); Turner v. State, 72 Tenn. 206, 210 (1879). Accordingly, a

prosecutor’s closing argument must be temperate, must be based on the evidence introduced at trial,

and must be pertinent to the issues in the case. State v. Middlebrooks, 995 S.W.2d 550, 557 (Tenn.

1999); Russell v. State, 532 S.W.2d 268, 271 (Tenn. 1976). However, even though the scope and

tenor of their arguments may be limited, State v. Thomas, 158 S.W.3d 361, 413 (Tenn. 2005)

(appendix), prosecutors, no less than defense counsel, may use colorful and forceful language in their

closing arguments, as long as they do not stray from the evidence and the reasonable inferences to

be drawn from the evidence, United States v. Mullins, 446 F.3d 750, 759 (8th Cir. 2006), or make

derogatory remarks or appeal to the jurors’ prejudices, State v. Reid, 164 S.W.3d at 320-21.

A criminal conviction should not be lightly overturned solely on the basis of the prosecutor’s

closing argument. United States v. Young, 470 U.S. 1, 11-13 (1985); State v. Bane, 57 S.W.3d 411,

425 (Tenn. 2001) (holding that a prosecutor’s improper closing argument does not automatically

warrant reversal). An improper closing argument will not constitute reversible error unless it is so

inflammatory or improper that if affected the outcome of the trial to the defendant’s prejudice. State

v. Thacker, 164 S.W.3d 208, 244 (Tenn. 2005) (appendix); State v. Cribbs, 967 S.W.2d 773, 786

(Tenn. 1998); see also State v. Reid, 164 S.W.3d at 321. When called upon to review the propriety

of a prosecutor’s closing argument, the court should consider: (1) the conduct at issue in light of the

facts and circumstances of the case, (2) the curative measures undertaken by the trial court and the

prosecution, (3) the intent of the prosecutor in making the improper argument, (4) the cumulative

effect of the improper argument and any other errors in the record, and (5) the relative strengths and

weaknesses of the case. State v. Reid, 164 S.W.3d at 321; State v. Middlebrooks, 995 S.W.2d at 559-

60; see also Tennessee Criminal Practice and Procedure § 29.61, at 112.

Trial courts have significant discretion to control closing arguments. State v. Stephenson,

195 S.W.3d 574, 603 (Tenn. 2006) (appendix); Terry v. State, 46 S.W.3d 147, 156 (Tenn. 2001).

Ordinarily, counsel must object contemporaneously to a perceived improper argument. State v.

Thomas, 158 S.W.3d at 413 (appendix); State v. Keen, 926 S.W.2d 727, 736 (Tenn. 1994).

However, when flagrantly improper arguments are made, the trial court, with or without objection,
Unobjected to closing arguments warrant reversal only in exceptional circumstances. United States v. Smith,

30

508 F.3d 861, 864 (8th Cir. 2007). Accordingly, like the United States Court of Appeals for the Eighth Circuit, “[w]e

bear in mind that fleeting comments that passed without objection during the rough-and-tumble of closing argument in

the trial court should not be unduly magnified when the printed transcript is subjected to painstaking review in the

reflective quiet of an appellate judge’s chambers.” United States v. Mullins, 446 F.3d at 758.

-29-

should step in and take proper curative action. Watkins v. State, 140 Tenn. at 9, 203 S.W. at 346

(holding that the trial court should have given a “stern rebuke” “promptly and voluntarily” to a

prosecutor who made a grossly improper argument); Turner v. State, 72 Tenn. at 210; Sparks v.

State, 563 S.W.2d 564, 569 (Tenn. Crim. App. 1978). Some arguments may be so exceptionally

flagrant that they constitute plain error and provide grounds for reversal even if they were not

objected to. State v. Reid, 91 S.W.3d at 283-84.30

B.

The Prosecutor’s Argument Regarding the Jury’s Role with Regard to

Mitigating Circumstances

The first statement challenged by Mr. Banks relates to the jury’s role with regard to

mitigating circumstances. The prosecutor argued the following to the jury: 

[Y]ou’re going to get a whole list of 17 or 18 of them [(mitigating

circumstances)], a whole slew of them. But the Court is not telling

you that any of those are mitigating circumstances. The Court can’t

do that because that’s your job. That’s your function. And you get

to decide whether any of these 17 or 18 decisions are mitigating

circumstances.

Mr. Banks objected to this statement and requested a curative instruction. During a bench

conference, the trial court explained that this statement was incorrect and permitted the prosecutor

to correct her own error. Following the bench conference, the prosecutor argued to the jury that:

In a few moments, the Court will present you with a list of things that

are labeled ‘mitigating circumstances.’ And it is up to you to accept

or reject which ones apply in this case, if any. And after you

determine whether any of these are to be considered, during your

determination you also have to assess the weight to give each and

every single one of these mitigating circumstances, if any.

Mr. Banks did not object to this description of the jury’s role with regard to mitigating

circumstances. 

Following the closing arguments, the trial court gave the following instruction with regard

to assessing mitigating circumstances as part of its general instructions:

Mitigating circumstances. Tennessee law provides that in

arriving at the punishment, the jury shall consider as previously
-30-

indicated any mitigating circumstances raised by the evidence which

shall include but are not limited to the following: . . . [O]ne, the

defendant has no significant history of prior criminal activity.

Convictions for the crimes of aggravated assault, aggravated burglary,

domestic violence assault, and attempted aggravated burglary are not

aggravating circumstances to be considered in determining the

penalty but a conviction of that crime may be considered . . . in

determining whether or not the defendant has a significant history of

prior criminal activity.

Two, the youth of the defendant at the time of the crime.

Three, the defendant was an accomplice in the murder

committed by another person and the defendant’s conduct was

relatively minor.

Four, the defendant is HIV positive and as a result of his

illness, the defendant has attempted to take his own life.

Five, the defendant has held several jobsin spite of his illness.

Six, the defendant transferred from school to school and was

unable to maintain friendships established at school and did not

complete high school.

Seven, the defendant was one of ten children and he received

only limited support from his mother and father.

Eight, the defendant’s family moved around from place to

place and were never really together. Additionally, some of the

children were removed from the home.

Nine, the defendant’s two younger sisters were raped.

Ten, the defendant’s mother is currently incarcerated and has

been incarcerated for the majority of the defendant’s life. In addition,

the defendant’s brother Robert Hill was incarcerated during a

majority of the defendant’s life. 

Eleven, . . . the defendant was the youngest of seven brothers

and the brothers beat the defendant and picked on him to the point

that others had to intervene.

Twelve, despite lack of family support, the defendant was an

active member of Leewood Church and participated in the youth

activities. 

Thirteen, the defendant cared for his pets, tried to improve his

domestic skills by learning to cook and has a talent for drawing.

Fourteen, the defendant has been a good inmate.

Fifteen, while incarcerated the defendant has completed

numerous programs aimed at rehabilitation.

Sixteen, the defendant has touched the lives of others in a

positive way.

Seventeen, both the defendant’s family and friends from

church will continue to keep in contact with the defendant and

support him while he is incarcerated. 
-31-

And [eighteen], any other mitigating factor which is raised by

the evidence produced either by the prosecution or the defense at

either the guilt or the sentencing hearing. That is, you shall consider

any aspect of defendant’s character or record or any aspect of the

circumstances of the offense favorable to the defendant which is

supported by the evidence.

No distinction shall be made between mitigating

circumstances listed and those otherwise raised by the evidence. The

defendant does not have the burden of proving mitigating

circumstances. There is no requirement of jury unanimity as to any

particular mitigating circumstance or that you agree on the same

mitigating circumstance.

Tennessee law provides that the jury shall consider any mitigating circumstances which may

include, but are not limited to, those specified in Tenn. Code Ann. § 39-13-204(j) (2006). While the

jury must consider these circumstances, the ultimate determination of whether “mitigating evidence

exists and the weight to be given to aggravating and mitigating circumstances are issues for the jury.”

State v. Morris, 24 S.W.3d 788, 799 (Tenn. 2000); see also, e.g., State v. Pike, 978 S.W.2d 904, 918

(Tenn. 1998); State v. Mann, 959 S.W.2d 503, 512 (Tenn. 1997). 

In accordance with the catch-all provision in Tenn. Code Ann. § 39-13-204(j)(9), the

defendant may identify any other mitigation raised by the evidence as a mitigating circumstance.

However, the jury is then free to determine whether the suggested circumstance is applicable to the

case and the weight that should be given to that particular circumstance. For example, Mr. Banks

asserted that the fact that he can cook should be considered as a mitigating circumstance.

Accordingly, the trial court instructed the jury that Mr. Banks offered his ability to cook as a

mitigating circumstance and that they were required to consider it. However, the jury remained free

to determine whether, in fact, Mr. Banks had learned to cook and, if so, whether being able to cook

has any particular mitigation value. 

We have found statements similar to the prosecutor’s original statement in this case to fall

within the realm of permissible forms of argument. State v. Brimmer, 876 S.W.2d 75, 85 (Tenn.

1994) (declining to find that arguing that “there were no mitigating statements in the case” was

reversible error). In addition, the prosecutor immediately corrected her statement, and the trial court

gave the jury a complete and proper instruction regarding its role when considering the mitigating

evidence. Juries are presumed to follow the trial court’s instructions. State v. Young, 196 S.W.3d

85, 111 (Tenn. 2006); State v. Shaw, 37 S.W.3d 900, 904 (Tenn. 2001). With the trial court’s

instructions requiring the jury to consider the mitigating circumstances, there is no basis to conclude

that the prosecutor’s original statement rises to level of being reversible error.

C.

The Prosecutor’s Reference to a Prior Conviction for Theft of Property

In her argument challenging Mr. Banks’s assertion that he had no significant criminal history,

the prosecutor mentioned an incident involving a theft of property that occurred when Mr. Banks was
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a juvenile. Mr. Banks objected, and during a bench conference, the trial court instructed the

prosecutor to explain to the jury that it could not consider this incident. Following the bench

conference, the prosecutor stated to the jury: 

I apologize. I mis[-]spoke. The theft of property that you heard about

was one that wasn’t sustained or handled non-judicially, which means

it did not stay on the defendant’s criminal background.

Without further objection by Mr. Banks, the prosecutor detailed other criminal offenses committed

by Mr. Banks, including aggravated assault, aggravated burglary, criminal attempt to commit

aggravated burglary, and domestic assault. 

Mr. Banks insists that the prosecutor’s correction of her improper statement regarding the

juvenile theft of property offense did not cure the error. We disagree. The trial court did not list the

juvenile theft conviction among the offenses that the jury could consider in ascertaining the

applicability and weight of the claimed mitigating circumstance that Mr. Banks did not have a

significant criminal history. In light of the number of and seriousness of the other offenses that Mr.

Banks had committed, as well as the fact that the trial court did not include the juvenile theft offense

among those that the jury could consider, we decline to find that the prosecutor’s original erroneous

statement requires a reversal of Mr. Banks’s conviction. 

D.

The Prosecutor’s Reference to Giving Weight to Other

Mitigating Circumstances

Mr. Banks also argues that the prosecutor committed reversible error when she argued:

[W]hen you look at those mitigating circumstances and when you

think about whether or not to give them any weight, I want you to

each ask yourself if I give this one weight, what else do I have to give

weight? If I give weight to the fact that he’s HIV [positive], what else

do I give weight to those that have cancer and other diseases and

tumors and high blood pressure? That’s what I want you to ask

yourself.

Even though he did not object to this argument or include it in his motion for new trial, Mr. Banks

now insists that this argument “violated . . . [his] state and federal constitutional rights to due

process, to a fair jury trial and protections against cruel and unusual punishment.” We will review

this issue using the plain error analysis.
Mr. Banks’s brief states that “[t]he prosecutor improperly implied that the jury should decide whether an

31

aggravating circumstance deserves any weight based upon whether the jury would then have to give other aggravating

circumstances any weight” (emphasis added). Based on the substance and context of the argument, Mr. Banks was

clearly referring to “mitigating circumstances” rather than “aggravating circumstances.” 

-33-

The State is permitted to argue that mitigating circumstances are not applicable based upon 31

the evidence or that a circumstance is of little or no weight in terms of actual mitigation value. See,

e.g., State v. Hall, 976 S.W.2d 121, 170 (Tenn. 1998); State v. Brimmer, 876 S.W.2d at 85; State v.

Howell, 868 S.W.2d 238, 258 (Tenn. 1993). The State’s argument here is neither inflammatory nor

improper, thus we find no error, much less plain error. 

E.

The Prosecutor’s Reference to Mitigating Circumstances 

as Special Treatment

Mr. Banks contends that his constitutional rights were also violated by the prosecutor’s

argument that application of the mitigating factors would give the defendant special treatment. The

prosecutor stated the following:

It’s sad but with your everyday common lifetime experiences, you

know that it is common for some kids to pick on others, especially in

sibling situations. Does it set him apart from any other defendant

who commits murder? Does it make him special? Does it make him

different? Because a mitigating circumstance, ladies and gentlemen,

is one that sets it apart, something that makes this offense something

that deserves this defendant - - this defendant deserved to be treated

differently than everybody else, special consideration.

Mr. Banks objected to this statement on the ground that the prosecutor was suggesting that

consideration of mitigating factors constituted special treatment. The trial court responded as

follows:

[I]t’s not so much that he’s going to be given special treatment. He’s

going to be treated like anybody else under the law and the jury is

entitled to consider these things. I understand your objection. I’ll

simply state that you should - - since you do have your argument yet

to come, that you should respond to it in your argument. That would

be a better course.

The prosecutor then continued with her argument by stating:

So whether you’ve been bullied or picked on, you didn’t hear any

proof of torture. You didn’t hear any proof that he had to go a

hospital. You didn’t hear any proof that it was anything outside the

norm of anybody else’s childhood growing up experiences. So do
-34-

you set that apart? Is that anything different from what anybody else

has had to endure? Is it anything different than what any of you have

had to endure? Does it justify or excuse or should it be given less

culpability for execution because you had that lifetime childhood

experience?

The prosecutor’s argument was not that consideration of the mitigating circumstances would

afford Mr. Banks special treatment. Rather, the prosecutor was describing mitigating circumstances

as those that render a particular offender less culpable than the average person. Regardless of how

these arguments are characterized, they fall safely within the domain of legitimate argument that the

jury should afford little or no weight to a particular mitigating circumstance asserted by Mr. Banks,

specifically that Mr. Banks was picked on and beaten by his brothers. See, e.g., State v. Hall, 976

S.W.2d at 170; State v. Brimmer, 876 S.W.2d at 85; State v. Howell, 868 S.W.2d at 258.

F.

The Prosecutor’s Statement that the Wrong Punishment Would Negate

a Guilty Verdict

Mr. Banks also takes issue with the prosecutor’s argument that the wrong punishment would

negate a guilty verdict and insists that the trial court committed reversible error by failing to grant

a mistrial. While he concedes that the trial court gave a curative instruction, he insists that the

instruction did not remove the taint of the prosecutor’s implication that the statutorily authorized

punishments were wrong. 

During her closing argument, the prosecutor argued:

Now we’re . . . wrapping up what is . . . the penalty phase. And it is

considerably shorter than the first phase or the rest of the trial. But

make no mistake, it is no less important. And in fact, it’s more

important because the wrong punishment negates the proper verdict.

And the wrong punishment negates a guilty verdict.

Mr. Banks objected to the assertion that the verdict would be negated. The trial court responded to

Mr. Banks’s objection as follows:

I agree. . . . Whatever the verdict is, whatever sentence the jury

imposes, whichever one of the three options, that will be the proper

verdict because the jury’s consideration and ultimate decision is the

proper decision. . . . It will not negate what they’ve done thus far. So

I do think that went beyond what is appropriate. Would you like me

to offer a curative instruction?

The prosecutor then sought clarification of how she had erred. The trial court reiterated its

explanation and indicated that it would provide a curative instruction. The trial court then stated to

the jury the following:
-35-

Ladies and gentlemen, let me instruct you that the last comment made

by [the prosecutor] is not to be considered, that whatever your

decision is ultimately will be the right decision. And it will not in any

way negate the verdict you’ve reached or the decision you’ve made

thus far.

Mr. Banks offered no further objection and did not request a mistrial.

Juries are presumed to follow the trial court’s instructions. State v. Young, 196 S.W.3d at

111; State v. Shaw, 37 S.W.3d at 904. The trial court’s curative instruction adequately remedied the

potential prejudice caused by the prosecutor’s erroneous argument. 

Mr. Banks never requested a mistrial following this comment and did not include the trial

court’s failure to grant a mistrial as one of the grounds of his motion for new trial. Accordingly, he

has waived this issue. We will, nevertheless, review this issue using the plain error analysis.

The decision of whether to grant or deny a mistrial rests within the sound discretion of the

trial court. State v. Smith, 871 S.W.2d 667, 672 (Tenn. 1994). A mistrial should be declared only

upon a showing of manifest necessity. State v. Saylor, 117 S.W.3d 239, 250 (Tenn. 2003). 

Accordingly, a mistrial is an appropriate remedy when a trial cannot continue or a miscarriage of

justice would result if it did. State v. Robinson, 146 S.W.3d at 494. An appellate court should not

reverse a trial court’s decision denying a request for a mistrial absent a clear showing that the trial

court abused its discretion. State v. Reid, 91 S.W.3d at 279. The burden of establishing the necessity

of a mistrial lies with the party seeking it. State v. Reid, 164 S.W.3d at 342. We find no error, much

less plain error in the trial court utilizing a curative instruction instead of declaring a mistrial. The

instruction adequately addressed any concerns regarding the impact on the jury of the prosecutor’s

statement.

G.

The Prosecutor’s Reference to Facts Not in Evidence

In his final challenge to the prosecutor’s closing arguments, Mr. Banks contends that the

prosecutor committed reversible error by stating that Mr. Al-Maily had witnessed the robbery and

had begged for his life. He did not object to these statements at trial, and he did not cite these

statements in his motion for new trial. Accordingly, he has waived this issue. We will, nevertheless,

review this issue using the plain error analysis.

There is nothing improper in the prosecution’s argument that Mr. Al-Maily witnessed the

robbery. The evidence fully supports this contention. However, there is no evidence that Mr. AlMaily begged for his life. The jury was instructed that the arguments of counsel are not evidence

and are to be disregarded if not supported by the evidence. We presume that the jurors follow their

instructions. State v. Young, 196 S.W.3d at 111; State v. Shaw, 37 S.W.3d at 904. Reviewed in its

context in the prosecution’s closing argument, this comment had no effect on the verdict in this case.

We decline to conclude the prosecutor’s statement rises to the level of plain error.
-36-

XIII.

THE SUFFICIENCY OF THE EVIDENCE

Mr. Banks challenges the sufficiency of the evidence to support his convictions. Tenn. R.

App. P. 13(e) provides that “[f]indings of guilt in criminal actions whether by the trial court or jury

shall be set aside if the evidence is insufficient to support the findings by the trier of fact of guilt

beyond a reasonable doubt.” When assessing whether there is sufficient evidence to support a

criminal conviction, a jury’s verdict of guilt removes the presumption of innocence replacing it with

a presumption of guilt. State v. Wilson, 211 S.W.3d at 718; State v. Scarborough, 201 S.W.3d 607,

624 (Tenn. 2006). Thus, a defendant bears the burden of demonstrating that the evidence is

insufficient to sustain a guilty verdict. State v. Dotson, 254 S.W.3d 378, 395 (Tenn. 2008); State v.

Campbell, 245 S.W.3d 331, 335 (Tenn. 2008).

When reviewing the evidence in a criminal case, appellate courts must afford the State the

strongest legitimate view of the evidence as well as give the State the benefit of all reasonable

inferences that may be drawn therefrom. State v. McGouey, 229 S.W.3d 668, 671 (Tenn. 2007);

State v. Vasques, 221 S.W.3d 514, 521 (Tenn. 2007). The responsibility for determining the weight

and credibility to be given witnesses’ testimony and the responsibility to reconcile conflicts in the

testimony are entrusted to the triers of fact. State v. Campbell, 245 S.W.3d at 335; State v. Langford,

994 S.W.2d 126, 127 (Tenn. 1999). With this framework firmly in mind, the ultimate question for

an appellate court “is whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime beyond

a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also State v. Dotson, 254

S.W.3d at 395; State v. Campbell, 245 S.W.3d at 335; State v. Berry, 141 S.W.3d at 564.

A.

The Premeditated First Degree Murder Conviction

Mr. Banks argues that the evidence is insufficient to support his conviction for the

premeditated first degree murder of Mr. Al-Maily. He argues that the State failed to prove that he

acted with premeditation. Instead, Mr. Banks contends that he shot Mr. Al-Maily in “the heat of

passion” and that he was not aware prior to arriving at Mr. Atilebawi’s residence that Mr. Al-Maily

would be there. Mr. Banks also argues that the State failed to present sufficient evidence to prove

that he was the shooter. The State insists that the evidence is sufficient to prove that Mr. Banks shot

Mr. Al-Maily and that he acted with premeditation. The Court of Criminal Appeals concluded that

the evidence was sufficient to support Mr. Banks conviction for first degree premeditated murder.

We concur with the determination of the Court of Criminal Appeals. 

Mr. Banks was convicted on the first count of the indictment, a charge of first degree murder

for the premeditated killing of Mr. Al-Maily. Pursuant to Tenn. Code Ann. § 39-13-202(a)(1), first

degree murder includes the “premeditated and intentional killing of another.” The Tennessee

General Assembly has defined premeditation for purposes of first degree murder as follows:

“[P]remeditation” is an act done after the exercise of reflection and

judgment. “Premeditation” means that the intent to kill must have
-37-

been formed prior to the act itself. It is not necessary that the purpose

to kill pre-exist in the mind of the accused for any definite period of

time. The mental state of the accused at the time the accused

allegedly decided to kill must be carefully considered in order to

determine whether the accused was sufficiently free from excitement

and passion as to be capable of premeditation.

Tenn. Code Ann. § 39-13-202(d). 

“Premeditation may be inferred from the manner and circumstances of the killing.” Finch

v. State, 226 S.W.3d 307, 318 (Tenn. 2007). Tennessee courts have identified a number of factors

that tend to demonstrate a homicide was premeditated. These factors include, but are not limited to,

(1) the use of a deadly weapon to kill an unarmed victim, (2) the procurement of weapons used to

commit a murder, (3) declarations of intent to kill the victim, (4) preparations for the concealment

of a crime, (5) lack of provocation by the victim, (6) failure to provide aid or assistance to the victim,

and (7) calmness after the killing. State v. Brooks 249 S.W.3d 323, 329 (Tenn. 2008). 

Mr. Banks used a deadly weapon, killed an unarmed victim who gave no provocation,

provided no aid or assistance to his victim, and was calm afterwards. Furthermore, Mr. Al-Maily

had fully cooperated with Mr. Banks during the robbery. Instead of resisting, Mr. Al-Maily handed

over three hundred dollars to Mr. Banks. He also remained in the bedroom lying facedown on the

floor as ordered while Messrs. Banks and Hilliard stole clothing, audio speakers, and cash from Mr.

Atilebawi’s home.

Mr. Banks took the time to search the living room and bedroom for items to steal and then

to load the Jeep with speakers and clothes. With Mr. Al-Maily lying facedown on the floor, having

fully complied with his directions, Mr. Banks could simply have left the premises with his ill-gotten

gains. Instead, he returned to the house, walked up to a person whom he considered a friend who

was lying on the floor, and shot him in the back of the head from close range. Viewing the facts in

a light most favorable to the State, a reasonable jury could have easily have found beyond a

reasonable doubt that Mr. Banks acted with premeditation when he shot Mr. Al-Maily. 

We now turn to the question of whether the State presented sufficient evidence to

demonstrate that Mr. Banks shot Mr. Al-Maily. We conclude that, viewing the facts in the light most

favorable to the State, the testimony of Mr. Atilebawi, the physical evidence, the fact that Mr. Banks

was found driving the stolen Jeep containing the property stolen from Mr. Atilebawi, and Mr.

Banks’s confession that he shot Mr. Al-Maily provide sufficient evidence to permit a reasonable jury

to find beyond a reasonable doubt that Mr. Banks shot Mr. Al-Maily. 

B.

The Murder in the Perpetration of a Robbery Conviction

Mr. Banks also contends that the evidence is insufficient to support his conviction for murder

in the perpetration of a robbery. He argues that any robbery that occurred was a separate and distinct

event from the shooting of Mr. Al-Maily. Additionally, Mr. Banks argues there was no evidence that
The term “corpus delicti” is often confused for the “dead body.” Bryan A. Garner, A Dictionary of Modern

32

Legal Usage 226 (2nd ed. 1995) (“A Dictionary of Modern Legal Usage”). However, it refers to “[t]he fact of a

trangression” and will generally be established in a criminal homicide case through the evidence of the death of the

victim joined with some evidence that the death resulted not from an accident but a criminal act. Black’s Law Dictionary

346 (7th ed. 1999); A Dictionary of Modern Legal Usage 226. 

-38-

he intended to rob Mr. Al-Maily and that ownership of the money and the red Jeep that were found

in his possession was not conclusively established. Citing State v. Smith, 24 S.W.3d 274 (Tenn.

2000), Mr. Banks also points out that a conviction cannot be founded solely on a defendant’s

confession. The State contends that it presented sufficient evidence to support the conviction. The

Court of Criminal Appeals concluded that the evidence was sufficient to support a conviction for

murder in the perpetration of a robbery. We agree. 

Under Tennessee law, first degree murder includes “[a] killing of another committed in the

perpetration of or attempt to perpetrate any . . . robbery.” Tenn. Code Ann. § 39-13-202(a)(2).

Robbery, under Tennessee law, “is the intentional or knowing theft of property from the person of

another by violence or putting the person in fear.” Tenn. Code Ann. § 39-13-401(a). The Tennessee

General Assembly has expressly provided that “[n]o culpable mental state is required for conviction

under subdivision (a)(2) . . . except the intent to commit the enumerated offenses or acts” in that

subdivision. Tenn. Code Ann. § 39-13-202(b).

It is a long-standing rule of Tennessee law that to fall within the definition of felony murder,

a killing must have been “done in pursuance of the unlawful act, and not collateral to it . . . . [In other

words,] [t]he killing must have had an intimate relation and close connection with the felony . . . and

not be separate, distinct, and independent from it.” State v. Rice, 184 S.W.3d 646, 663 (Tenn. 2006)

(quoting Farmer v. State, 201 Tenn. 107, 115-16, 296 S.W.2d 879, 883 (1956)). In applying this

requirement, this Court has concluded that “[t]he killing ‘may precede, coincide with, or follow the

felony and still be considered as occurring ‘in the perpetration of’ the felony offense, so long as there

is a connection in time, place, and continuity of action.’” State v. Thacker, 164 S.W.3d at 223

(quoting State v. Buggs, 995 S.W.2d at 106). The defendant must have the intent to commit the

underlying felony either prior to or concurrent with the act causing the victim’s death. State v.

Thacker, 164 S.W.3d at 223; State v. Buggs, 995 S.W.2d at 107. A defendant’s actions immediately

after the killing can provide a basis from which the jury may reasonably infer that the defendant,

either prior to or concurrent with committing the act that caused the victim’s death, had an intent to

commit the underlying felony. State v. Thacker, 164 S.W.3d at 223; State v. Buggs, 995 S.W.2d at

108.

We have long recognized that a conviction cannot be based solely on a defendant’s

confession and, therefore, that the State must present some corroborating evidence to establish the

corpus delicti. State v. Smith, 24 S.W.3d at 281. The “corpus delicti” refers to the “body of the

crime – evidence that a crime was committed at the place alleged in the indictment.” Van Zandt v.

State, 218 Tenn. 187, 202, 402 S.W.2d 130, 136 (1966). The threshold for establishing the corpus 32

delicti is “low” and requires only “slight evidence,” which can be met through reliance upon

circumstantial evidence. State v. Housler, 193 S.W.3d 476, 490-91 (Tenn. 2006). Thus, “[a]

confession may sustain a conviction where there is other evidence sufficient to show the commission
-39-

of the crime by someone.” State v. Jones, 15 S.W.3d 880, 891 (Tenn. Crim. App. 1999) (quoting

Taylor v. State, 479 S.W.3d 659, 661-62 (Tenn. Crim. App. 1972)). 

After shooting Mr. Atilebawi, Mr. Banks entered Mr. Atilebawi’s house and, along with Mr.

Hilliard, searched through Mr. Atilebawi’s living room and bedroom looking for items to steal.

Having just shot Mr. Atilebawi and with the gun still in his possession, Mr. Banks took three

hundred dollarsin cash from Mr. Al-Maily. Messrs. Banks and Hilliard gathered packaged clothing,

audio speakers, and cash and loaded them into the red Jeep. Mr. Banks then shot Mr. Al-Maily

before leaving. Mr. Banks used violence and fear to rob Messrs. Atilebawi and Al-Maily. Viewing

the facts in the light most favorable to the State, there is sufficient evidence from which a reasonable

jury could have found beyond a reasonable doubt that there was a connection in time, place, and

continuity of action between the shooting of Mr. Al-Maily and the robbery. 

As for ownership of the property, Mr. Atilebawi testified that Mr. Banks stole his cash, silver

key rings, and his red Jeep. Mr. Banks confessed that he stole the cash from Messrs. Atilebawi and

Al-Maily as well as audio speakers, clothing, and a red Jeep. He was found in possession of all of

the above when arrested by the police. Viewing the facts in the light most favorable to the State, this

evidence provides a sufficient basis from which a reasonable juror could conclude beyond a

reasonable doubt that the property was owned by Messrs. Atilebawi and Al-Maily.

As for Mr. Banks’s argument that a confession alone is insufficient evidence upon which to

convict a defendant, he is correct insofar as there must be some slight evidence in addition to a

confession in order to establish the corpus delicti. In this case, the discovery of Mr. Al-Maily’s dead

body with a gunshot wound in the back of his head and no firearm next to him would adequately

meet this standard by providing evidence that a homicide occurred in a manner other than by

accident. The evidence bolstering Mr. Banks’s confession, however, extends significantly beyond

the discovery of the body with a gunshot wound – as does the evidence of his guilt in general. By

way of illustration, Mr. Banks was arrested afterthe shootings in a vehicle stolen from Mr. Atilebawi

with Mr. Atilebawi’s property inside. 

C.

The Criminal Attempt to Commit First Degree Murder Conviction 

Mr. Banks asserts that the State presented insufficient evidence to support his conviction for

criminal attempt to commit first degree murder. He argues that the shooting occurred following

provocation during an argument regarding Mr. Banks having been cheated out of a large sum of

money and the alleged sexual assault on hisformer girlfriend. He asserts that the evidence supports

only an intent to cause bodily injury because he left the scene without “finish[ing] the victim off.”

The State argues that the evidence presented was sufficient. The Court of Criminal Appeals

concluded that a reasonable jury could have found that Mr. Banks acted with premeditation and

intended to kill Mr. Atilebawi. We agree.

The Tennessee General Assembly has defined criminal attempt as follows:
-40-

(a) A person commits criminal attempt who, acting with the kind of

culpability otherwise required for the offense:

(1) Intentionally engages in action or causes a result that

would constitute an offense, if the circumstances surrounding

the conduct were as the person believes them to be;

(2) Acts with intent to cause a result that is an element of the

offense, and believes the conduct will cause the result without

further conduct on the person’s part; or

(3) Acts with intent to complete a course of action or cause a

result that would constitute the offense, under the

circumstances surrounding the conduct as the person believes

them to be, and the conduct constitutes a substantial step

toward the commission of the offense.

(b) Conduct does not constitute a substantial step under subdivision

(a)(3), unless the person’s entire course of action is corroborative of

the intent to commit the offense.

(c) It is no defense to prosecution for criminal attempt that the offense

attempted was actually committed.

Tenn. Code Ann. § 39-12-101. As noted above, first degree murder includes the “premeditated and

intentional killing of another,” Tenn. Code Ann. § 39-13-202(a)(1), and premeditation for purposes

of first degree murder has been defined as follows:

“[P]remeditation” is an act done after the exercise of reflection and

judgment. “Premeditation” means that the intent to kill must have

been formed prior to the act itself. It is not necessary that the purpose

to kill pre-exist in the mind of the accused for any definite period of

time. The mental state of the accused at the time the accused

allegedly decided to kill must be carefully considered in order to

determine whether the accused was sufficiently free from excitement

and passion as to be capable of premeditation.

Tenn. Code Ann. § 39-13-202(d). 

The evidence establishes that several days before the murder Mr. Banks began quite

deliberately plotting his revenge upon Mr. Atilebawi. Because the firearm that he kept in his Ford

Explorer was not working, Mr. Banks obtained another firearm from Mr. Hilliard. Messrs. Hilliard

and Banks discussed disposing of Mr. Atilebawi’s dead body in the Wolf River. Mr. Banks shot Mr.

Atilebawi four times, including twice in the head. He tried to conceal the body, but Mr. Atilebawi

was too heavy to move.
-41-

Mr. Banks offers no legal support for his argument that his decision to leave Mr. Atilebawi

on the driveway, covered in blood and still bleeding from four different gunshot wounds, including

two shots to his head, negates his intent to kill Mr. Atilebawi. Viewing the facts in a light most

favorable to the State, there is sufficient evidence from which a reasonable jury could find beyond

a reasonable doubt that Mr. Banks acted with premeditation in shooting Mr. Atilebawi. 

D.

The Especially Aggravated Robbery Conviction

Finally, Mr. Banks contends that the State presented insufficient evidence to prove that he

committed an especially aggravated robbery. Specifically, he takes issue with the sufficiency of the

evidence that the Jeep was stolen or that the shooting of Mr. Atilebawi was related to robbery. Mr.

Banks asserts that the robbery and the shooting were not connected. The State responds that the

record contains ample evidence to support Mr. Banks’s conviction for the especially aggravated

robbery of Mr. Atilebawi. The Court of Criminal Appeals concluded that the evidence presented

was sufficient for a reasonable jury to conclude that the elements of especially aggravated robbery

had been proven beyond a reasonable doubt. We agree. 

Robbery “is the intentional or knowing theft of property from the person of another by

violence or putting the person in fear.” Tenn. Code Ann. § 39-13-401(a). Especially aggravated

robbery is a robbery that is “(1) [a]ccomplished with a deadly weapon; and (2) [w]here the victim

suffers serious bodily injury.” Tenn. Code Ann. § 39-13-403(a). 

With regard to evidence of the Jeep belonging to Mr. Atilebawi, Mr. Atilebawi testified that

Mr. Banks stole his Jeep. Mr. Banks admitted in both of his confessions to stealing Mr. Atilebawi’s

Jeep, and a neighbor of Mr. Banks testified that she had never seen him in a red Jeep until the

morning after the shootings.

Mr. Banks came to Mr. Atilebawi’s house with a loaded semi-automatic pistol. He shot Mr.

Atilebawi with that pistol four times. As a result, part of Mr. Atilebawi’s brain had to be removed,

and he spent a month in the hospital. Mr. Atilebawi suffered permanent cognitive impairments.

This shooting of Mr. Atilebawi was closely connected in time, place, and continuity of action with

the robbery. Viewing the facts in the light most favorable to the State, a reasonable jury could find

beyond a reasonable doubt that Mr. Banks committed especially aggravated robbery.

XIV.

THE TRIAL COURT’S REFUSAL TO PERMIT MR. BANKS TO CALL OFFICER

MIKE BARTLETT AS A WITNESS DURING THE PENALTY PHASE

Mr. Banks takes issue with the trial court’s refusal to allow him to call one of its own court

officers to testify during the penalty phase of the trial regarding his good conduct as a prisoner. Even

though he concedes that he did not include this perceived error in his motion for new trial or raise

it before the Court of Criminal Appeals, Mr. Banks asserts that the denial of his request to call the

court officer constituted plain error because it infringed on his right to call witnesses under the Sixth

Amendment to the United States Constitution and violated his constitutional due process of law
-42-

protections. We have determined that the trial court did not commit plain error by denying Mr.

Banks’s request to call one of its court officers to testify about Mr. Banks’s good conduct.

Before the presentation of evidence in the penalty phase of the trial began, the trial court

announced that Officer Mike Bartlett, one of the four deputies assigned to safeguard and attend the

jury while it was sequestered, had reported to him that the defense had asked him to testify as a

mitigation witness. The trial court stated on the record that 

Absent extraordinary circumstances, I’m not going to allow

that to happen. I don’t think it’s appropriate. 

I think for bailiffs who have been sworn and charged with the

responsibility of guarding the jurors and establishing a rapport with

them all week long, to then be called to testify for either side is

inappropriate. I think there are many other jailers and law

enforcement personnel that have had contact with this defendant over

the past two and a half years and over the past week that could testify

to the same thing that Officer Bartlett would be available to testify on.

And it’s almost a betrayal of the trust between the deputy and the

jurors to then start calling those deputies to the stand to testify.

. . . It’s just not appropriate. And so if there were some

extraordinary circumstance, if some phenomenal event occurred, then

that might be different. But if it’s just to generally testify to the good

conduct of the defendant as he came and went from the courtroom

each day, no, that’s not appropriate. And it would be cumulative and

for all those reasons.

Mr. Banks’s lawyer thanked the court “for putting that on the record” but did not object or take

exception to the trial court’s decision. During the penalty phase, Mr. Banks called multiple

witnesses who addressed his conduct while in jail pending trial including Officer Michael Conner,

Officer Charlene Compton, Officer Wayman Thomas, Officer Latosha Nadia, and Commander Roy

L. Rogers. Because Mr. Banks did not make an offer of proof regarding what Officer Bartlett’s

testimonywould have been, the record contains no indication that Officer Bartlett had any additional

testimony that would be anything more than cumulative to that of the other witnesses. 

The trial court’s decision not to allow the bailiff charged with safeguarding the jury to testify

during the sentencing phase of the trial was entirely correct. In parallel circumstances this Court has

previously disapproved of the practice of an officer who has testified in a criminal case having

charge of the jury. Ellis v. State, 218 Tenn. 297, 306, 403 S.W.2d 293, 297 (1966). We find no

error, plain or otherwise, in the trial court’s decision to exclude Officer Bartlett as a penalty phase

witness.
United States v. High Elk, 442 F.3d 622, 626 (8th Cir. 2006); Douglas A. Berman & Stephanos Bibas, Making

33

Sentencing Sensible, Ohio St. J. Crim. L. 37, 52-54 (2006).

See State v. Gomez, 239 S.W.3d at 739. 34

State v. Carter, 254 S.W.3d 335, 343 (Tenn. 2008). 35

See Act of May 18, 2005, ch. 353, 2005 Tenn. Pub. Acts 788. 36

-43-

XV.

THE SENTENCES FOR ATTEMPTED FIRST DEGREE MURDER AND

ESPECIALLY AGGRAVATED ROBBERY

Mr. Banks challenges his consecutive twenty-five year sentences for attempted first degree

murder and especially aggravated robbery on three grounds. First, he asserts that these sentences

violate Blakely v. Washington, 542 U.S. 296 (2004) and that he was entitled to a presumptive

sentence in the absence of a finding of enhancement factors by the jury. Second, he asserts that each

of these sentences was excessive. Third, he asserts that the trial court erred by ordering these

sentences to be served consecutively. The Court of Criminal Appeals found each of these claims to

be without merit. We agree.

A.

In Blakely v. Washington, the United States Supreme Court held that the Sixth Amendment

required sentences in criminal cases to be based on the facts either admitted by the defendant or

found by the jury. Blakely v. Washington, 542 U.S. at 303-04. Therefore, the Court held that trial

courts could not impose a sentence higher than the statutory maximum sentence if their decision was

based on facts that were neither admitted by the defendant nor found by the jury. Blakely v.

Washington, 542 U.S. at 304. However, in the remedial portion of its decision in United States v.

Booker, 543 U.S. 220, 245-68 (2005), the United States concluded that judicial fact-finding in

sentencing was permissible so long assentencing guidelines were advisory rather than mandatory.33

As they existed prior to 2005, Tennessee criminal sentencing statutes established a sentencing

range and a “presumptive sentence” for each class of felonies other than capital murder. Under the 34

sentencing procedures required by these statutes, a trial court could not increase a defendant’s

sentence above the presumptive sentence unless it found that enhancement factors existed. If the

trial court determined that enhancement factors existed, it then had the authority to increase a

defendant’s sentence up to the maximum sentence provided for that range.35

The decision in Blakely v. Washington placed a constitutional cloud over the power of trial

courts in Tennessee to sentence defendants beyond the statutory presumptive sentence based on facts

not reflected in the jury’s verdict. Accordingly, in 2005, the Tennessee General Assembly amended

36

the sentencing statutes to make the statutory sentencing guidelines advisory and to remove the

presumptive sentences for each class of felonies other than capital murder. See Tenn. Code Ann. §

40-35-210(c) (2006); State v. Carter, 254 S.W.3d at 343. The removal of the presumptive sentences

and rendering the guidelines advisory cured the Sixth Amendment defect noted in Blakely v.
These principles can be found in Tenn. Code Ann. §§ 40-35-102, -103 (2006 & Supp. 2007). The Tennessee

37

General Assembly chose “Bookerization” rather than “Blakelyization” when it replaced the formerly presumptive

guideline in favor of advisory guidelines. Stephanie Watson, Fixing California Sentencing Law, 39 McGeorge L. Rev.

585, 593 n.89 (2008) (hereinafter “Watson”) (quoting Model Penal Code: Sentencing (Prelim. Draft. No. 4 2005)).

Tennessee was the first state in which the legislature converted a former presumptive guidelines system into an advisory

system. Model Penal Code: Sentencing, Reporter’s Introductory Memorandum xxxvii & n.19 (Tent. Draft No. 1 2007);

Watson at 593. In 2007, the California State Legislature also opted for “Bookerization” rather than “Blakelyization.”

Watson at 591-97.

Mr. Banks’s lawyer questioned her client when the sentencing hearing began. After discussing the “old 38

sentencing law” and the “new sentencing law,” she asked Mr. Banks “which law do you wish to go under?” He

responded, “[t]he new one.” 

Mr. Banks acknowledged his understanding that he was not entitled to a presumptive sentence when he agreed 39

that his lawyer had “explained to . . .[him] that under the new sentencing law that the court is required to start at the . .

. minimum time in the range for the particular offense as opposed to where they used to start at the middle of the range.”

-44-

Washington using the United States v. Booker remedy and enabled Tennessee’s trial courts to

sentence a defendant to any sentence within the applicable range as long as the length of the sentence

is “consistent with the purposes and principles of the sentencing statutes.” See Tenn. Code Ann. §

40-35-210(d).37

Mr. Banks knowingly exercised his right to be sentenced under the sentencing laws as

amended in 2005. As a result of this decision, he did not have the right to a presumptive 38

sentence. Accordingly, Mr. Banks’s objections to his sentences for attempted first degree murder 39

and especially aggravated robbery based on Blakely v. Washington and his purported right to be

sentenced at the presumptive sentence are without merit. 

B.

Mr. Banks also takes issue with the length of his sentences for attempted first degree murder

and especially aggravated robbery. He asserts (1) that these sentences are excessive, (2) that the trial

court relied on enhancement factors that were not supported by the evidence, (3) that the trial court

“erred in his treatment of the mitigating factors,” and (4) that the trial court violated Blakely v.

Washington by considering “enhancement factors [that] were not determined by a jury.” The Court

of Criminal Appeals found that the length of these sentences was not excessive. We agree. 

Mr. Banks has a statutory right to take issue on appeal with the length of his sentences on the

ground that they are excessive. Tenn. Code Ann. § 40-35-401(b)(2) (2006). When reviewing a

sentence, an appellate court must review the record de novo and must presume that the

determinations made by the court from which the appeal is taken – in this case the Court of Criminal

Appeals – are correct. Tenn. Code Ann. § 40-35-401(d). We have interpreted this statutory standard

of review to mean that an appellate court is “bound by a trial court’s decision as to the length of the

sentence imposed so long as it is imposed in a manner consistent with the purposes and principles

set out in sections -102 and -103 of the Sentencing Act.” State v. Carter, 254 S.W.3d at 346. Mere

disagreement with how the trial court weighed enhancing and mitigating factors is not an adequate

basis for reversing a sentence. State v. Carter, 254 S.W.3d at 345-46. 
Tenn. Code Ann. § 40-35-114(1) (2006). 40

Tenn. Code Ann. § 40-35-114(2). 41

Tenn. Code Ann. § 40-35-114(6). 42

Tenn. Code Ann. § 40-35-114(8) 43

Tenn. Code Ann. § 40-35-114(13)(C). 44

Tenn. Code Ann. § 40-35-114(14). 45

In the brief filed in this Court, the State seeks to side-step its concession in the Court of Criminal Appeals that 46

the trial court should not have considered the enhancement factors in Tenn. Code Ann. § 40-35-114(6), (14). This the

State cannot do because of the doctrine of judicial estoppel. See Marcus v. Marcus, 993 S.W.2d 596, 602 (Tenn. 1999)

(quoting Obion County v. McKinnis, 211 Tenn. 183, 186, 364 S.W.2d 356, 357 (1962)) (holding that “a party will not

be permitted to occupy inconsistent positions or to take a position in regard to a matter which is directly contrary to, or

inconsistent with, one previously assumed by him”). 

-45-

The twenty-five year sentences imposed on Mr. Banks by the trial court and affirmed by the

Court of Criminal Appeals are the maximum sentences for convictions for attempted first degree

murder and especially aggravated robbery. As the Court of Criminal Appeals noted, the trial court’s

sentencing decision with regard to Mr. Banks’s convictions for attempted first degree murder and

especially aggravated robbery were based on the following six enhancement factors: (1) Mr. Banks

had a previous history of criminal convictions or criminal behavior in addition to those necessary

to establish the appropriate range, (2) Mr. Banks was the leader in the commission of the offense, 40 41

(3) the personal injuries inflicted upon and the amount of damage to property sustained by or taken

from Mr. Atilebawi were particularly great, (4) Mr. Banks failed to comply with the conditions of 42

a sentence involving release into the community, (5) the felony was committed while Mr. Banks 43

was released on probation, and (6) Mr. Banks abused a position of private trust. State v. Banks,

44 45

2007 WL 1966039, at *45-46. The trial court also considered Mr. Banks’s apparent lack of remorse

and his dangerousness.

Before the Court of Criminal Appeals, Mr. Banks took issue with the trial court’s reliance

on the three enhancement factors in Tenn. Code Ann. § 40-35-114(2), (6), (14). He also asserted that

the trial court had erred by disregarding all his mitigating factors solely because of his lack of

remorse. The State conceded that the evidence did not support the trial court’s reliance on the

enhancement factors in Tenn. Code Ann. § 40-35-114(6), (14) but insisted that the evidence fully 46

supported the trial court’s reliance on the enhancement factor in Tenn. Code Ann. § 40-35-114(2)

and that the trial court had not improperly disregarded Mr. Banks’s mitigating factors.

The trial court focused its analysis on the nature and characteristics of Mr. Banks’s criminal

conduct in this case, the weight of the evidence supporting the enhancement factors, and the relative

lack of weight of Mr. Banks’s mitigation evidence. The trial court considered all of the criteria set

out in Tenn. Code Ann. § 40-35-210(b) and then imposed a sentence within the applicable range.

The trial court explained its reasons for imposing the sentences, and most of the trial court’s relevant

findings are adequately supported by the record. See State v. Carter, 254 S.W.3d at 346. 
-46-

The trial court’s sentencing discretion was broadened when the Tennessee General Assembly

enacted the 2005 amendments to the sentencing statutes. State v. Carter, 254 S.W.3d at 345. We

have conducted a detailed, de novo review of the record with regard to the twenty-five year sentences

Mr. Banks received for attempted first degree murder and especially aggravated robbery, and we

have determined that the evidence supports the trial court’s finding of the enhancement factors in

Tenn. Code Ann. § 40-35-114(1), (2), (8), and (13)(c). Accordingly, despite the trial court’s reliance

on two inapplicable enhancement factors, we, like the Court of Criminal Appeals, have concluded

that the trial court considered and weighed all the matters that Tenn. Code Ann. § 40-35-210

required it to consider and that the four remaining enhancement factors more than adequately support

the trial court’s discretionary decision to impose twenty-five year sentences for these two crimes.

C.

In his final challenge to his non-capital sentences, Mr. Banks argues that the trial court erred

by ordering these sentences to be served consecutively. Specifically, he insists that his criminal

history after he became eighteen years old was not extensive enough to influence whether he should

serve his non-capital sentences concurrently or consecutively. 

The Tennessee General Assembly has provided the courts with the factors to consider when

determining whether sentences should be served concurrently or consecutively. Tenn. Code Ann.

§ 40-35-115(b) (2006). A trial court may order multiple sentences to be served consecutively upon

finding that any one of the seven factors contained in Tenn. Code Ann. § 40-35-115(b) apply. 

However, if the trial court bases its decision to require sentences to be served consecutively on its

finding that the defendant is a dangerous offender, it must make additional findings regarding the

severity of the crimes committed and the necessity to protect the public from further criminal acts

by the defendant. State v. Allen, 259 S.W.3d 671, 689 (Tenn. 2008); State v. Robinson, 146 S.W.3d

at 524 (appendix); State v. Lane, 3 S.W.3d 456, 460-61 (Tenn. 1999). 

Although it is only necessary for the trial court to find one of the factors in Tenn. Code Ann.

§ 40-35-115(b) in order to require Mr. Banks to serve his non-capital sentences consecutively, the

trial court found that three factors were applicable. In accordance with Tenn. Code Ann. § 40-35-

115(b)(2), the trial court found that Mr. Banks’s record of criminal activity was extensive,

particularly for someone so young. The trial court also found, in accordance with Tenn. Code Ann.

§ 40-35-115(b)(4), that Mr. Banks was a dangerous offender. Finally, the trial court had already

determined that Mr. Banks had committed his crimes while on probation. See Tenn. Code Ann. §

40-35-115(b)(6).

Mr. Banks argues that the trial court should not have considered his juvenile record and that

he did not have a particularly extensive criminal record after his eighteenth birthday. Neither the law

nor the facts support this argument. When determining whether sentences should run consecutively

or concurrently, trial courts are not limited to considering the defendant’s criminal activity or

conduct that occurred after the defendant’s eighteenth birthday. State v. Stockton, 733 S.W.2d 111,

112 (Tenn. Crim. App. 1986); see also Tenn. Code Ann. § 37-1-133(b) (2005) (authorizing the use

of juvenile records in the preparation of pre-sentence reports). 
The aggravating circumstance in Tenn. Code Ann. § 39-13-204(i)(6) arises when “[t]he murder is committed 47

for the purpose of avoiding, interfering with, or preventing the lawful arrest or prosecution of the defendant or another.”

The aggravating circumstance in Tenn. Code Ann. § 39-13-204(i)(7) arises when “[t]he murder was

48

knowingly committed . . . by the defendant, while the defendant had a substantial role in committing . . . any . . . robbery

. . . .” 

-47-

Mr. Banks’s presentence report and other evidence in this case provides ample evidence of

his extensive criminal record and of his dangerousness. He has prior convictions on two counts of

assault, one of which involved bodily harm. He has been convicted of aggravated burglary. His

criminal conduct in this case demonstrates a lack of regard for human life and a lack of hesitation

to resort to violence to commit crimes that create a high risk to human life. Based on our de novo

review of the record, we have concluded, like the Court of Criminal Appeals, that the trial court, in

accordance with Tenn. Code Ann. § 40-35-115, did not err by ordering Mr. Banks to serve his

sentences for attempted first degree murder and especially aggravated robbery consecutively. 

XVI.

THE SUFFICIENCY OF THE EVIDENCE REGARDING THE STATUTORY AGGRAVATING

CIRCUMSTANCES REQUIRED BY TENN. CODE ANN. § 39-13-204(i) (2006)

The death penalty cannot be imposed unless the jury determines unanimously that the State

has proved beyond a reasonable doubt one or more of the aggravating circumstances in Tenn. Code

Ann. § 39-13-204(i) (2006). In Mr. Banks’s case, the jury determined that the State had proved the

existence of two aggravating circumstances – Tenn. Code Ann. § 39-13-204(i)(6) and Tenn. Code 47

Ann. § 39-13-204(i)(7).48

In the Court of Criminal Appeals, Mr. Banks challenged the adequacy of the evidence with

regard to both of these aggravating circumstances. The Court of Criminal Appeals concluded that

the evidence supported the jury’s finding with regard to the aggravating circumstance in Tenn. Code

Ann. § 39-13-204(i)(7) but not the aggravating circumstance in Tenn. Code Ann. § 39-13-204(i)(6).

However, the Court of Criminal Appeals also determined that the trial court’s error in submitting the

aggravating circumstance in Tenn. Code Ann. § 39-13-204(i)(6) to the jury was harmless beyond a

reasonable doubt. 

In this Court, Mr. Banks asserts that the evidence is insufficient to support the finding of an

aggravating circumstance under either Tenn. Code Ann. § 39-13-204(i)(6) or Tenn. Code Ann. § 39-

13-204(i)(7) and that the trial court’s error with regard to the aggravating circumstance in Tenn.

Code Ann. § 39-13-204(i)(6) was not harmless. The State argues that the evidence supports both

aggravating circumstances and, in the alternative, that the error, if any, with regard to the aggravating

circumstance in Tenn. Code Ann. § 39-13-204(i)(6) was harmless. We have determined that the

evidence fully supports the jury’s finding with regard to both aggravating circumstances. Therefore,

we reverse the Court of Criminal Appeals’s decision that the evidence does not support the finding

of an aggravating circumstance under Tenn. Code Ann. § 39-13-204(i)(6).

A.
-48-

In addressing whether the evidence is sufficient to support a jury’s finding of the existence

of an aggravating circumstance, our standard of review is framed by taking the facts in a light most

favorable to the State and by considering whether a rational trier of fact could have found the

existence of an aggravating circumstance beyond a reasonable doubt. State v. Reid, 164 S.W.3d at

314; Terry v. State, 46 S.W.3d at 160-61. Even if a defendant has not expressly challenged the

sufficiency of an aggravating circumstance found by the jury, it is, nevertheless, the duty of this

Court to determine whether “[t]he evidence supports the jury’s finding of statutory aggravating

circumstance or circumstances.” Tenn. Code Ann. § 39-13-206 (c)(1)(B);see also State v. Reid, 164

S.W.3d at 314. 

B.

The Tenn. Code Ann. § 39-13-204 (i)(6) Aggravating Circumstance

The jury found unanimously that the State had proven beyond a reasonable doubt that “[t]he

murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest

or prosecution of the defendant or another.” Tenn. Code Ann. § 39-13-204(i)(6). This aggravating

circumstance arises where one of the defendant’s motivations for killing the victim was to avoid

arrest or prosecution. State v. Ivy, 188 S.W.3d 132, 149 (Tenn. 2006). While this aggravating

circumstance is not limited to killing of eyewitnesses or those who could identify the defendant,

State v. Reid, 164 S.W.3d at 315, the killing of a witness to a crime because that person witnessed

a crime may, depending on the circumstances, constitute a killing for purpose of avoiding arrest or

prosecution. State v. Reid, 213 S.W.3d 792, 818 (Tenn. 2006); State v. Rollins, 188 S.W.3d 553, 572

(Tenn. 2006); State v. Davis, 141 S.W.3d 600, 618-19 (Tenn. 2004). 

The Court of Criminal Appeals concluded that the evidence was insufficient to support the

Tenn. Code Ann. § 39-13-204(i)(6) aggravating circumstance. It reasoned as follows:

The proof establishes that the victim, Kadhem Al-Maily,

observed or overheard the shooting and robberyof his friend, Hussain

Atilebawi. After review, it is apparent that the proof, relevant to this

issue, fails to support application of the (i)(6) factor. We are unable

to conclude that the Appellant’s course of action, before and after the

homicide of the victim, is consistent with or corroborative of the

motive that he killed the victim to prevent his arrest. Indeed, as

asserted by the Appellant, after the perpetration of the crime, he did

not flee the area, but, rather, he remained in the community.

Moreover, the Appellant made no effort to move his victims or to

conceal evidence of the crimes. The Appellant argues that, to apply

the (i)(6) factor in this case, without more proof, would make the

factor inherent in any murder involving the perpetration of a robbery.

We agree. The only other possible theory supporting the existence of

the (i)(6) aggravating circumstance is the argument that, because the

Appellant knew the victim, it could be inferred that the victim might

recognize him. The evidence, however, does not support this

inference beyond a reasonable doubt. Indeed, the evidence shows that
Mr. Banks’s precise words were “I tried to pull him away but he was too heavy to move.” 49

-49-

the Appellant left a witness who could identify him, Atilebawi, and

that he knew when he left that Atilebawi was alive. Accordingly, we

conclude that the jury’s finding of the (i)(6) aggravating factor must

be vacated.

State v. Banks, 2007 WL 1966039, at *53. We respectfully disagree with this finding. Viewing the

evidence in the light most favorable to the State, we have concluded that the evidence shows beyond

a reasonable doubt that Mr. Banks killed Mr. Al-Maily to eliminate him as a witness to his crimes.

The Court of Criminal Appeals’s finding that Mr. Banks “made no effort to move his

victims” is not supported by the record. Mr. Banks confessed to attempting to move Mr. Atilebawi’s

body. He stated in his first confession that he “was scared and didn’t want nobody to see [Mr.

Atilebawi].” Mr. Banks also told the police that he had tried to conceal Mr. Atilebawi’s body but

that Mr. Atilebawi was too heavy to move. In addition to his admission that he tried to conceal Mr. 49

Atilebawi’s body after shooting him, Mr. Banks also admitted that he and Mr. Hilliard had actually

discussed throwing Mr. Atilebawi’s body in the Wolf River to conceal their crime. This evidence

is more than sufficient to enable a reasonable juror to conclude that Mr. Banks was planning the

ways that he would conceal his crimes several days before he committed them and that he was intent

on concealing his crimes after he arrived at Mr. Atilebawi’s house.

As evidence that he was not attempting to conceal his crimes when he killed Mr. Atilebawi,

Mr. Banks points to the fact that Mr. Atilebawi was still alive when he left the scene. However, the

facts of this case would also enable a reasonable juror to conclude that Mr. Banks believed that Mr.

Atilebawi was either dead or dying when he left the scene. He had shot Mr. Atilebawi four times,

twice in the head. Mr. Atilebawi was lying bleeding in his driveway. Mr. Atilebawi was consciously

trying to avoid moving or attracting Mr. Banks’s attention because he was afraid that Mr. Banks

would shoot him again. Mr. Banks offered no aid or assistance to Mr. Atilebawi. On these facts,

a reasonable juror could easily conclude that Mr. Banks left Mr. Atilebawi for dead.

Mr. Banks also points to the fact that he stayed in the neighborhood of the crime and did not

attempt to flee as further evidence that he was not attempting to conceal what he and Mr. Hilliard

had done the night before. If anything, this evidence would prompt a reasonable juror to conclude

that Mr. Banks did not attempt to flee because he believed that he had killed the only two

eyewitnesses to the crime. This conclusion is buttressed by Mr. Banks’s own confession. When

asked to explain his early morning spending spree after leaving Mr. Atilebawi’s house, Mr. Banks’s

answers reflected his belief that he was under no danger of being arrested because he assumed that

Messrs. Atilebawi and Al-Maily were dead or would die before they had a chance to talk with the

police. When asked why he purchased new rims and tires for the stolen red Jeep, Mr. Banks replied

that he purchased these items because he planned to keep the Jeep. He also volunteered that he had

picked up a job application at Walgreens.

Most importantly, however, the circumstances surrounding Mr. Al-Maily’s death provide

persuasive evidence regarding Mr. Banks’s motivation for shooting him. From Mr. Banks’s point
-50-

of view, the only remaining witness who could identify him was his friend, Mr. Al-Maily. Mr. AlMaily had handed over his money without resistance, had not interfered in any way with Messrs.

Banks and Hilliard, and had complied with the order to lie face down on the floor of Mr. Atilebawi’s

bedroom. After Messrs. Banks and Hilliard loaded the stolen property in the Jeep, they could have

simply left the scene. Instead, Mr. Banks walked back into Mr. Atilebawi’s house, went into Mr.

Atilebawi’s bedroom, and calmly and deliberately shot Mr. Al-Maily in the head. Mr. Banks had

no personal animus toward Mr. Al-Maily. The manner in which he shot Mr. Al-Maily would prompt

any reasonable juror to conclude that Mr. Banks shot his friend not to complete the crimes but to

cover them up. 

Simply stated, viewing the facts in the light most favorable to the State, a reasonable juror

could have found beyond a reasonable doubt that Mr. Banks killed Mr. Al-Maily to eliminate a

witness to his crimes. Accordingly, we reverse the Court of Criminal Appeals’s conclusion that the

Tenn. Code Ann. § 39-13-204(i)(6) aggravating circumstance was not sufficiently supported by the

evidence. Furthermore, because the aggravating circumstance was sufficiently supported by the

evidence, we pretermit any discussion of whether an error in charging this circumstance would have

been harmless.

C.

The Tenn. Code Ann. § 39-13-204(i)(7) Aggravating Circumstance

Mr. Banks challenges the finding of the Tenn. Code Ann. § 39-13-204(i)(7) aggravating

circumstance on three fronts. First, he argues that the State presented insufficient evidence to

support the application of this aggravating circumstance. Second, he claims that it is impossible to

determine whether this aggravating circumstance applied to his premeditated murder conviction or

his felony murder conviction. Third, he insists that applying the aggravating factor to his felony

murder conviction violates State v. Middlebrooks, 840 S.W.2d 317 (Tenn. 1992) because the factor

is already inherent in any conviction for murder in the perpetration of a robbery. The Court of

Criminal Appeals found Mr. Banks’s challenge to the Tenn. Code Ann. § 39-13-204(i)(7)

aggravating factor to be without merit. State v. Banks, 2007 WL 1966039, at *55. We agree.

We need not tarry long with Mr. Banks’s claim that the record contains insufficient evidence

to support the invocation of the Tenn. Code Ann. § 39-13-204(i)(7) aggravating factor. The jury

concluded unanimously that the State had proved beyond a reasonable doubt that “[t]he murder was

knowingly committed, solicited, directed, or aided by the defendant, while the defendant had a

substantial role in committing or attempting to commit, or was fleeing after having a substantial role

in committing or attempting to commit, any robbery.” For the reasons discussed in affirming Mr.

Banks’s conviction for first degree murder in the perpetration of a robbery and premeditated murder,

we find that this aggravating circumstance is sufficiently supported by the evidence. 

Mr. Banks’s arguments regarding the ambiguity of the application of the Tenn. Code Ann.

§ 39-13-204(i)(7) aggravating circumstance and the violation of State v. Middlebrooks are likewise

without merit. The jurors addressed one murder in this case – the killing of Mr. Al-Maily by Mr.

Banks. The jurors were asked to determine whether the State proved its two asserted aggravating

circumstances beyond a reasonable doubt. They unanimously found that the State had proved both
See Act of May 22, 1995, ch. 377, 1995 Tenn. Pub. Acts 587. 50

Even prior to this legislative amendment, Mr. Banks’s argument would have been unavailing for, as this Court

51

indicated in State v. Hall, 958 S.W.2d 679, 692-93 (Tenn. 1997), “application of the felony murder aggravating

circumstance is inappropriate only if the defendant is convicted solely on the basis of felony murder. Implicit in that

statement is the recognition that the circumstance properly may be applied if a defendant is convicted of premeditated

first degree murder.” See also Carter v. State, 958 S.W.2d 620, 624-25 (Tenn. 1997); State v. Price, 46 S.W.3d 785,

826-27 (Tenn. Crim. App. 2000). 

He asserts that all the challenged provisions “[e]xcept where otherwise noted,” violate U.S. Const. amend. 52

V, VI, VII, and XIV.

Likewise, he asserts that the challenged provisions “[e]xcept where otherwise noted,” violate Tenn. Const.

53

art. I, §§ 8, 9, 16, 17 and Tenn Const. art. II, § 2.

-51-

the Tenn. Code Ann. § 39-13-204(i)(6) aggravating circumstance and the Tenn. Code Ann. § 39-13-

204(i)(7) aggravating circumstance beyond a reasonable doubt. It is neither rational nor conceivable

that the jurors concluded that these facts were true as to one of the counts of Mr. Banks murdering

Mr. Al-Maily but not the other. Mr. Banks either killed Mr. Al-Maily to avoid arrest or prosecution

or he did not. He either knowingly killed Mr. Al-Maily in the perpetration of a robbery or he did not.

In 1992, this Court held that Tennessee’s broad definition of felony murder and the

duplicative language of the felony murder aggravating circumstance required it to hold that

Tennessee’s first degree murder statute, as it existed at that time, did not sufficiently narrow the class

of persons eligible for the death penalty to comply with the Eighth Amendment to the United States

Constitution. State v. Middlebrooks, 840 S.W.2d at 346. The Tennessee General Assembly

responded to this decision in 1995 by amending the aggravating circumstance in Tenn. Code Ann.

§ 39-13-204(i)(7) to require that the murder “was knowingly committed, solicited, directed, or aided

by the defendant, while the defendant had a substantial role in committing or attempting to commit”

one of the enumerated felonies. This amendment narrowed the class of offenders to whom the 50

death penalty could be applied sufficiently so as to leave no State v. Middlebrooks problem even in

cases where Tenn. Code Ann. § 39-13-204(i)(7) was the only aggravating circumstance established

and the conviction was for felony murder. State v. Reid, 91 S.W.3d at 306 n.13 (appendix).51

 

XVII.

THE CONSTITUTIONALITY OF TENNESSEE’S DEATH PENALTY

STATUTORY SCHEME

Mr. Banks also makes nine other general arguments that Tennessee’s death penalty statutes

violate various provisions of the Constitution of the United States and the Constitution of 52

Tennessee. We will address each of these arguments in turn. 53

A.

The Vagueness and Overbreadth of the Tenn. Code Ann. § 39-13-204(i)(6)

Aggravating Circumstance
-52-

Mr. Banks insists that the Tenn. Code Ann. § 39-13-204(i)(6) aggravating circumstance is

vague or overbroad. This Court has consistently recognized that this aggravating circumstance

requires that a motive for the killing must have been avoiding, interfering with, or preventing an

arrest or prosecution. See, e.g., State v. Ivy, 188 S.W.3d at 149. There is nothing vague or overbroad

about this aggravating circumstance. 

B.

The Duplication Between the Aggravating Circumstances in Tenn. Code Ann.

§ 39-13-204(i)(6) and Tenn. Code Ann. § 39-13-204(i)(7)

Mr. Banks argues that the aggravating circumstances in Tenn. Code Ann. § 39-13-204(i)(6)

and Tenn. Code Ann. § 39-13-204(i)(7) are unconstitutional because they duplicate each other.

These aggravating circumstances have the potential to overlap, particularly when a defendant kills

a person in order to eliminate a witness to one of the enumerated felonies set forth in Tenn. Code

Ann. § 39-13-204(i)(7) where there exists connection in time, place, and continuity of action

between the felony and the murder.

Notwithstanding the fact that these two aggravating circumstances could conceivably apply

to the same event, it does not necessarily follow that they are duplicates. It is not difficult to

conceive of numerous factual circumstances in which the defendant could commit a murder that

would fall within one aggravating circumstance but not the other. For example, a defendant who

murders a witness shortly before trial or murders a witness to a crime not included among those

enumerated in Tenn. Code Ann. § 39-13-204(i)(7) would fall under the Tenn. Code Ann. § 39-13-

204(i)(6) aggravating circumstance but not the Tenn. Code Ann. § 39-13-204(i)(7) aggravating

circumstance. Similarly, a defendant who kills a person whom he orshe was robbing either because

the victim refused to hand-over cash or because of some personal animus would fall under the Tenn.

Code Ann. § 39-13-204(i)(7) aggravating circumstance but not the Tenn. Code Ann. § 39-13-

204(i)(6) aggravating circumstance. Even assuming, for the sake of argument, that the aggravating

circumstances are duplicative, Mr. Banks has failed to demonstrate or explain why this duplication

would undermine their constitutionality.

C.

The Vagueness and Overbreadth of the Tenn. Code Ann. § 39-13-204(i)(5)

Aggravating Circumstance

Mr. Banks also insiststhat the Tenn. Code Ann. § 39-13-204(i)(5) aggravating circumstance

is unconstitutionally vague and overbroad. However, the State never attempted to invoke this

aggravating circumstance in this case, and the jury certainly never addressed it. Accordingly, Mr.

Banks has not demonstrated that he has standing to challenge this aggravating circumstance. 

D.

Tennessee’s Aggravating Circumstances’ Compliance with the 

Narrowing Requirements of the Eighth Amendment
-53-

In addition to the death penalty not being applicable to anycrime that does not result in death,

Tennessee narrowly circumscribes the homicide offenses to which the death penalty is applicable.

A conviction for vehicular homicide, aggravated vehicular homicide, assisted suicide, reckless

homicide, criminally negligent homicide, voluntary manslaughter, or second degree murder does not

render a defendant death penalty eligible. Even persons convicted of first degree murder cannot

become death penalty eligible until a jury finds unanimously that the State had proved beyond a

reasonable doubt the existence of one of the fifteen aggravating circumstances enumerated in Tenn.

Code Ann. § 39-13-204(i). 

Mr. Banks argues, despite his concession that he has no evidence to support his argument,

that most homicides that occurin Tennessee fall within the aggravating circumstances in Tenn. Code

Ann. § 39-13-204(i)(5), (6), & (7). He also argues that the concentration of capital cases in three

aggravating factors proves that Tennessee’s death penalty statutes fail to meaningfully narrow the

class of defendants who are death penalty eligible as required by the Eighth Amendment to the

United States Constitution. 

The United States Supreme Court has held that “an aggravating circumstance must genuinely

narrow the class of persons eligible for the death penalty and must reasonably justify the imposition

of a more severe sentence on the defendant compared to others found guilty of murder.” Zant v.

Stephens, 462 U.S. 862, 877 (1983). In addition to providing a public declaration of the state’s

policies regarding the offenses deemed to warrant the use of the death penalty, legislatively created

guidelines can also serve to channel the discretion ofjurors in determining whether the death penalty

is appropriate in a particular case. Zant v. Stephens, 462 U.S. at 876-78. Thus, they prevent the

wanton and freakish imposition of the death penalty. Zant v. Stephens, 462 U.S. at 876.

Through its statutory definition of first degree murder and its statutory enumeration of

aggravating circumstances, the Tennessee General Assembly has narrowed the class of defendants

to whom the death penalty may be applied. We have repeatedly found that these aggravating

circumstances meet the constitutional requirements of narrowing the class of death penalty eligible

persons and channeling juror discretion. See, e.g., State v. Bane, 57 S.W.3d at 426-27; Terry v.

State, 46 S.W.3d at 161-62; State v. Keen, 926 S.W.2d at 742. Mr. Banks’s argument has not

persuaded us that this determination is in error.

E.

Prosecutorial Discretion to Seek the Death Penalty

Mr. Banks asserts that Tennessee’s death penalty statutes are unconstitutional because they

confer unlimited discretion upon Tennessee’s district attorneys general to decide whetherto seek the

death penalty. He argues that the different values, motivations, and influences of these prosecutors,

as well as an absence of clear guidelines to direct their decision-making process, renders

Tennessee’s death penalty statutes unconstitutionally arbitrary and capricious. 

While Tennessee’s district attorneys general have been entrusted with broad discretion in

making charging decisions, it would be inaccurate to characterize their discretion as entirely

unfettered. The Tennessee General Assembly has defined the elements of the offense of first degree
See generally Joan E. Jacoby, The American Prosecutor: A Search for Identity 47 (1980); William T. Pizzi, 54

Understanding Prosecutorial Discretion in the United States: The Limits of Comparative Criminal Procedure as an

Instrument of Reform, 54 Ohio St. L.J. 1325, 1337-40 (1993); Kevin K. Washburn, American Indians, Crime, and the

Law, 104 Mich. L. Rev. 709, 725-29 (2006).

Frank W. Miller, Prosecution: The Decision to Charge a Suspect With a Crime 294-95 (1969). 55

-54-

murder and has provided that it is the only offense for which the death penalty may be sought. In

addition, the General Assembly has prescribed fifteen aggravating circumstances – at least one of

which must be established beyond a reasonable doubt – before the death penalty can be considered.

When deciding whether to pursue the death penalty, a district attorney general must take these

statutory requirements into account. In addition to these statutory requirements, a district attorney

general may not pursue the death penalty without probable cause to believe that the defendant

committed the offense. The district attorney general must also make sure that all charging decisions

fully comply with the Equal Protection Clause of the Fourteenth Amendment. United States v.

Armstrong, 517 U.S. 456, 464-65 (1996).

Tennessee’s district attorneys general are elected bythe voters of their districts. Tenn. Const.

art. VI, § 5; Tenn. Code Ann. § 8-7-102 (2002). Local control over prosecutors is a core component

of the American criminal justice system because prosecutors reflect the values of their local

communities. The fact that they are elected by the voters of their districts assures their

accountability. Simply stated, “no one else is in a better position to make charging decisions which 54

reflect community values as accurately and effectively as the prosecutor.”55

Furthermore, the United States Supreme Court has recognized that prosecutorial discretion

provides a vehicle for individualized justice. McCleskey v. Kemp, 481 U.S. 279, 311-12 (1987).

District attorneys general are officers of the executive branch of government. Accordingly, in the

absence of a violation of law, the courts may not interfere with the free exercise of their discretionary

authority over the criminal prosecutions in their respective districts. State v. Gilliam, 901 S.W.2d

385, 389 (Tenn. Crim. App. 1995).

The constitutionality of Tennessee’s death penalty statutes is not undermined because local

elected district attorneys general may make discretionary charging decisions with the statutory

framework established by the General Assembly. We have repeatedly rejected the argument that

such discretion raises a constitutional problem. State v. Hines, 919 S.W.2d 573, 582 (Tenn.1995);

State v. Brimmer, 876 S.W.2d at 86; State v. Cazes, 875 S.W.2d 253, 268 (Tenn. 1994); see also

McCleskey v. Kemp, 481 U.S. at 311-12; Gregg v. Georgia, 428 U.S. 153, 199 (1976). Mr. Banks

has not provided any argument that persuades us that these decisions are in error.

F.

The Allegedly Discriminatory Imposition of the Death Penalty

Mr. Banks asserts for the first time on appeal that the death penalty in Tennessee is being

imposed in a discriminatory manner based on race, gender, and geography. While the record

contains no evidence of discrimination specific to his own case, Mr. Banks relies on various
See, e.g., Castaneda v. Partida, 430 U.S. 482, 495-96 (1977); Turner v. Fouche, 396 U.S. 346, 358-59 56

(1970). 

See, e.g., Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 987 (1988); Basemore v. Friday, 478 U.S. 385, 57

400-01 (1986) (Brennan, J., concurring in part); Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 337-42 (1977).

The “Baldus studies” at issue in McCleskey v. Kemp consisted of two statistical studies examining over 2,000 58

murder cases that occurred in Georgia during the 1970s. These studies suggested that black defendants who kill white

victims had the greatest likelihood of receiving the death penalty. McCleskey v. Kemp, 481 U.S. at 286-87. The United

States District Court found the studies’ methodology flawed and declined to consider them. The United States Court

of Appeals assumed that the Baldus studies showed racial disparities in the imposition of the death penalty in Georgia.

The United States Supreme Court did not address the studies’ methodology. 

-55-

statistical studies to support his belated discrimination claims. We find that these claims came too

late and that Mr. Banks’s evidence proves too little. 

A defendant in a criminal proceeding who asserts an equal protection violation must prove

(1) the existence of purposeful discrimination and (2) that this purposeful discrimination had a

discriminatory effect on him or her. McCleskey v. Kemp, 481 U.S. at 292; see also State v. Irick, 762

S.W.2d 121, 129 (Tenn. 1988). A discriminatory purpose “implies more than intent as volition or

intent as awareness of consequences. It implies that the decisionmaker . . . selected or reaffirmed

a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects

upon an identifiable group.” McCleskey v. Kemp, 481 U.S. at 298 (quoting Personnel Adm’r of

Mass. v. Feeney, 442 U.S. 256, 279 (1979)). Thus, the defendant must prove that a discriminatory

purpose was one of the factors that motivated the decision-maker. Arlington Heights v. Metro. Hous.

Dev. Corp., 429 U.S. 252, 265-66 (1977). 

Statistical proof may be used to prove the existence of a discriminatory purpose in limited

circumstances. In rare cases, it can provide the sole evidence of discriminatory purpose, but to do

so, it must depict a stark pattern of discrimination that is unexplainable on other grounds. McCleskey

v. Kemp, 481 U.S. at 293-94; Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. at 266. The

United States Supreme Court has also permitted the use of statistical evidence to prove

discriminatory intent in jury selection and in Title VII cases. 56 57

However, in McCleskey v. Kemp, the United States Supreme Court determined that two

particular statistical studies of murder cases in Georgia were insufficient to prove discriminatory 58

intent in the context of decisions relating to the imposition of the death penalty in Georgia. The

Court gave four reasons for its conclusion. First, the Court determined that inferences drawn from

general statistics are not applicable to unique juries whose decisions rest on a consideration of

innumerable factors that vary according to the characteristics of the defendant and the facts of the

particular offense. McCleskey v. Kemp, 481 U.S. at 294. Second, the Court pointed out that the

State had no practical opportunity to explain any of the statistical disparities suggested by the studies.

McCleskey v. Kemp, 481 U.S. at 296. Third, emphasizing the essential role that discretion plays in

the criminal justice process, the Court determined that “exceptionally clear proof” of discriminatory

purpose is required before the courts will infer that this discretion has been abused. McCleskey v.

Kemp, 481 U.S. at 297. Fourth, a state legislature, exercising its broad discretion with regard to

criminal penalties, has legitimate reasons to maintain capital punishment, and there was no showing
Mr. Banks makes specific reference to a “nationwide study published in the Dallas Times Herald, June 17, 59

1985,” information compiled by the NAACP and found on the Death Penalty Information Center’s website, and a 1990

Report of the General Accounting Office to the House and Senate Judiciary Committees.

Scholarly analysis of crime and conviction data indicates that the difference between the number of men and 60

women sentenced to death can be attributed to non-discriminatory factors. There is, for example, a significant variance

between the number of murders committed by men and the number of murders committed by women. Lawrence M.

Friedman, Dead Hands: Past and Present in Criminal Justice Policy, 27 Cumb. L. Rev. 903, 911 (1996-1997); David

McCord, Imagining a Retributivist Alternative to Capital Punishment, 50 Fla. L. Rev. 1, 123 n.459 (1998). Similarly,

there is a well-documented variance between the types of murders generally committed by men and those generally

committed by women. Elizabeth Rapaport, Equality of the Damned: The Execution of Women on the Cusp of the 21st

Century, 26 Ohio N.U. L. Rev. 581, 582-83 (2000); Elizabeth Rapaport, The Death Penalty and Gender Discrimination,

25 Law & Soc’y Rev. 367, 369-74 (1991); Victor L. Streib, Gendering the Death Penalty: Countering Sex Bias in a

(continued...)

-56-

that the legislature maintained capital punishment because of a racially disproportionate impact.

McCleskey v. Kemp, 481 U.S. at 298-99. 

1.

Discrimination Based on Race

Mr. Banks argues that the very same statistical study discredited in McCleskey v. Kemp and

several other general studies “demonstrate the existence of racial discrimination in the imposition 59

of the sentence of death” and that “Tennessee lacks any means of ensuring that discrimination does

not infest the death sentencing process.” However, he presents no evidence of improper

discriminatory purpose with regard to his prosecution on the part of the District Attorney General,

the trial court, or the jury that convicted him, and he provides no statistical information specifically

regarding racial discrimination in connection with the imposition of the death penalty in Tennessee.

In the absence of other, more direct evidence of a racially discriminatory intent, the evidence

offered by Mr. Banks falls far short of the sort of exceptionally clear proof that would enable the

courts to conclude that the actions of the decision-makers in his case were motivated by an improper

discriminatory purpose based on Mr. Banks’s race or the race of Mr. Banks’s victim. Accordingly,

we concur with the conclusion of the Court of Criminal Appeals that Mr. Banks failed to prove that

the imposition of the death penalty in his case was the result of a racially discriminatory purpose.

2.

Discrimination Based on Gender

Mr. Banks’s argument regarding discrimination based on gender consists of three sentences

and includes no citations to authority. He asserts that Tennessee must discriminate against men in

the imposition of the death penalty because “[t]here are 92 men on death row [in Tennessee], but

there are only two women.” This evidence, by itself, does not provide the sort of exceptionally clear

proof upon which to conclude that the decision-makers in Mr. Banks’s case were motivated by an

improper desire to discriminate against Mr. Banks because he is a male. The difference between the

number of men and the number of women on death row can readily be attributed to the fact that

fewer women commit crimes that are death penalty eligible. 

60
(...continued) 60

Masculine Sanctuary, 63 Ohio St. L. J. 433, 459 (2002); see also Lawrence A. Greenfeld & Tracy L. Snell, Bureau of

J u stice S t a tisti c s S p e c i a l Re p o rt W o m e n O ff e n d ers 4 (Re v ise d 2 0 0 0 ), availabl e a t

http://www.ojp.usdoj.gov/bjs/pub/pdf/wo.pdf (last visited Oct. 15, 2008). 

Riley C. Darnell, Tennessee Blue Book 2007-2008 641 (2008) (reporting data collected by the United State

61

Census Bureau’s 2000 census). 

This information is available through a review of the annual Crime in Tennessee reports available from the 62

T e n n e sse e B u r e a u o f Inv e s t i g a t i o n S t a t i s t i c a l A n a lysis C e n t e r, avai l abl e a t

http://www.tbi.state.tn.us/divisions/isd_csu_sac.htm (last visited Oct. 17, 2008). The date for the period from 2001

through 2007 shows that 39.2% of the murders reported in Tennessee in 2001 occurred in Shelby County; 38.5% in 2002;

34.3% in 2003; 30.9% in 2004; 33.7% in 2005; 36.7% in 2006; and 34.9% in 2007. 

The data for the period from 2001 through 2007 shows that 71.1% of the murders reported in Tennessee in 63

2001 occurred in Davidson, Hamilton, Knox, Madison, Shelby, and Sullivan Counties; 69.8% in 2002; 67.0% in 2003;

62.6% in 2004; 72.6% in 2005; 71.9% in 2006; and 68.9% in 2007.

The homicides reported in these six counties exceeded 70% of the total number of homicides reported 64

statewide in 2001, 2005, and 2006.

-57-

3.

Discrimination Based on Location of the Offense

Mr. Banks also insists that Tennessee’s death penalty is unconstitutional because of the

variance in its application among different counties in the State of Tennessee. He specifically notes

that although only 15% of the State’s population resides in Shelby County, 40% of the population

on death row results from Shelby County prosecutions. Additionally, Mr. Banks asserts that Shelby,

Davidson, Knox, Madison, Hamilton, and Sullivan Counties, though representing only 42% of the

State’s population, are responsible for approximately 69% of the death sentences.

Mr. Banks’s argument on this point erroneously assumes that variance from a random

demographic result is necessarily arbitrary. However, a clearer inspection of the geographic variance

in the application of the death penalty in Tennessee suggests that Mr. Banks’s statistical argument

is misleading. While approximately 16% of the State’s population resides in Shelby County,61

consistently more than 30% of all the murders reported in Tennessee between 2001 and 2007 are

committed in Shelby County. In fact, the number of murders reported in Shelby County each year 62

averaged over 35% of the murders reported in the entire State during that period. Thus, the actual

number of murders reported in Shelby County corresponds with the 39% of death row inmates from

Shelby County.

Similarly, while only approximately 42% of the State’s population resides in Davidson,

Hamilton, Knox, Madison, Shelby, and Sullivan Counties, these counties consistently account for

more than 60% of the murders reported in the State of Tennessee between 2001 and 2007. They 63

have occasionally accounted for more than 70% of the murders reported in Tennessee. Mr. Banks 64

estimates the number of death row inmates from these counties as 69%. If that is the case, the
Between 2001 and 2007, the average percentage of the reported homicides in these six counties was 69.1% 65

of the statewide total.

-58-

percentage of murdersreported in these counties closely approximates the percentage of defendants

on death row from these counties.65

Mr. Banks’s arguments based on the location of the offense fail to factor in the influence of

prosecutorial discretion. As can be seen, they also suffer from a lack of factual support.

Accordingly, Mr. Banks has failed to present sufficient evidence to demonstrate that he received the

death penalty because he was from Shelby County. To the contrary, the jury sentenced Mr. Banks

to death because he murdered Mr. Al-Maily in the perpetration of a robbery and for the purpose of

avoiding, interfering with, or preventing a lawful arrest or prosecution. 

G.

The Requirement that the Jury Agree Unanimously to a Life Verdict

Mr. Banks argues that requiring the jury to agree unanimously upon a life verdict violates the

United States Supreme Court’s rulings in McKoy v. North Carolina, 494 U.S. 433 (1990) and Mills

v. Maryland, 486 U.S. 367 (1988). This Court fully addressed and rejected this argument in State

v. Brimmer, 876 S.W.2d at 87. Mr. Banks has not offered a persuasive argument showing that this

decision was in error.

H.

The Pattern Jury Instruction Regarding the Jury’s Determination of the

Existence of a Mitigating Circumstance

Mr. Banks asserts that the Tennessee Pattern Jury Instructions are inconsistent with the

United States Supreme Court’s ruling in McKoy v. North Carolina, 494 U.S. 433 (1990) and Mills

v. Maryland, 486 U.S. 367 (1988). He argues that these instructions lead jurors to believe

erroneously that theymust unanimously agree on any mitigating circumstance. While conceding that

this argument was rejected generally in State v. Thompson, 768 S.W.2d 239, 251-52 (Tenn. 1989),

he insists that this case differs from State v. Thompson because the trial court did not give the special

additional instruction that “[b]ecause different people may have different views about what tends to

ameliorate or mitigate . . . you may weigh and consider any and all circumstances which you feel

tend to mitigate the offense or defendant in question.” See State v. Thompson, 768 S.W.2d at 251.

In this case, the trial court instructed the jurors that “[t]he defendant does not have the burden

of proving mitigating circumstances. There is no requirement of jury unanimity as to any particular

mitigating circumstance or that you agree on the same mitigating circumstance.” We find that this

instruction does not lead jurors to believe that they must unanimously agree on the existence of a

mitigating circumstance. See, e.g., State v. Hall, 958 S.W.2d at 718 (appendix).

I.

The Process for Ensuring Proportionality
-59-

Mr. Banks correctly asserts that states should provide meaningful appellate proportionality

review of death sentences to ensure that the death penalty is not being arbitrarily and capriciously

imposed. He argues that the review process currently being used by Tennessee’s appellate courts

is inadequate because (1) the jury is not required to make written findings concerning mitigating

circumstances, (2) the informational base for comparative review of first degree murder convictions

is inadequate and incomplete, (3) the courts’ methodology for conducting comparative review is

flawed, and (4) the courts allow defendants to waive presentation of mitigating evidence without

requiring an offer of proof as to what mitigation is available. He also insists that the process fails

to meet the standards required for due process.

While comparative proportionality review provides an important safeguard against arbitrary

and capricious sentencing, it is not constitutionally required. State v. Bland, 958 S.W.2d 651, 663

(Tenn. 1997). The Tennessee General Assembly has directed the appellate courts to determine

whether “[t]he sentence of death is excessive or disproportionate to the penalty imposed in similar

cases, considering both the nature of the crime and the defendant.” Tenn. Code Ann. §

39-13-206(c)(1)(D). We have noted that the automatic review by this Court of every death sentence

is an integral part of Tennessee’s death penalty process. State v. Pritchett, 621 S.W.2d 127, 140

(Tenn. 1981). 

There are no more serious cases that arrive at this Court’s doorstep than death penalty cases.

They involve crimes of the most serious impact, and they involve a penalty that is the most severe

that can be imposed. Reviewing any death penalty appeal is given the utmost attention and highest

priority by each of the members of this Court. Mr. Banks’s challenges to this Court’s means and

methods of reviewing the proportionality of a death sentence have been repeatedly rejected. See,

e.g., State v. Reid, 91 S.W.3d at 286 n.9; State v. Rimmer, 250 S.W.3d 12, 43 (Tenn. 2008)

(appendix); State v. Vann, 976 S.W.2d 93, 118-19 (Tenn. 1998) (appendix); State v. Keen, 926

S.W.2d at 743-44; State v. Barber, 753 S.W.2d 659, 663-668 (Tenn. 1988).

The Tennessee General Assembly has provided that “[t]he Tennessee Supreme Court may

promulgate rules as it deems appropriate to establish such procedures as are necessary to enable the

reviewing courts to properly review the death sentence.” Tenn. Code Ann. § 39-13-206(c)(2). We

continue to find the review process to be a significant contributor to safeguarding against the

arbitrary and capricious application of the death penalty. We also continue to find the existing

procedures to be adequate to enable this Court to properly carry out its review in death penalty cases.

XVIII.

THE CONSTITUTIONALITY OF TENNESSEE’S LETHAL INJECTION PROTOCOL

Mr. Banks contends that the State’s lethal injection protocol violates his constitutional rights

against the infliction of cruel and unusual punishment under the Eighth Amendment to the United

States Constitution. Specifically, Mr. Banks asserts that his federal and state constitutional rights

would be violated through the use of Tennessee’s execution method because the injections are not

prepared, administered or monitored by medical professionals and because of the use of certain drugs

in Tennessee’s current execution protocol. This Court recently upheld Tennessee’s lethal injection
We also note that the United States Supreme Court has declined to invalidate a substantially similar execution

66

protocol that was challenged on essentially the same grounds. Baze v. Rees, ___ U.S. ___, ___, 128 S. Ct. 1520, 1528

(2008). 

Tenn. Dep’t of Corr., Report on Administration of Death Sentence in Tennessee (Apr. 30, 2007), available 67

at Workman v. Bredesen, 486 F.3d 896, 913-921 (6th Cir. 2007) (Appendix A); see also State v. Payne, No.

M1988-00096-SC-DPE-DD, (Tenn. Oct. 22, 2007) (order), available at http://www.tsc.state.tn.us/OPINIONS/TSC/Cap

Cases/Payne/20071022/Payne%20Pervis%20Order%2010-22-07.pdf. 

-60-

protocol in Abdur’Rahman v. Bredesen, 181 S.W.3d 292 (Tenn. 2005). Both of these features of 66

the drug protocol – the use of the three drug protocol and the absence of medical professionals –

were present in 2005 and remained when the protocol was further refined in 2007. Mr. Banks has 67

failed to persuade this Court that we should reconsider our earlier decision in Abdur’Rahman v.

Bredesen.

XIX.

THE PENOLOGICAL OBJECTIVE OF THE DEATH PENALTY 

Mr. Banks contends that the death penalty is unconstitutional because it fails to serve any

legitimate penological objective. The death penalty serves the valid and legitimate penological

objectives of deterrence and retribution. Roper v. Simmons, 543 U.S. 551, 571 (2005); Atkins v.

Virginia, 536 U.S. 304, 319 (2002). Thus, we reject Mr. Banks’s argument that the death penalty

is unconstitutional because it fails to serve any legitimate penological objective.

XX.

CONSIDERATION OF THE MANDATORY REVIEW FACTORS IN TENN. CODE ANN.

§ 39-13-206 WITH REGARD TO MR. BANKS’S SENTENCE

When reviewing a conviction for first degree murder and an accompanying sentence of death,

Tenn. Code Ann. § 39-13-206(c)(1) requires the courts to review the record to determine whether

(A) The sentence of death was imposed in any arbitrary

fashion;

(B) The evidence supports the jury’s finding of statutory

aggravating circumstance or circumstances;

(C) The evidence supports the jury’s finding that the

aggravating circumstance or circumstances outweigh any

mitigating circumstances; and

(D) The sentence of death is excessive or disproportionate to

the penalty imposed in similar cases, considering both the

nature of the crime and the defendant.
-61-

We have carefully reviewed the record in this case, and, as we will discuss more fully, we have

determined that Mr. Banks’s sentence was not imposed in any arbitrary fashion. We have also

determined that the evidence supports the jury’s findings that the State proved the aggravating

circumstances in Tenn. Code Ann. § 39-13-204(i)(6) and Tenn. Code Ann. § 39-13-204(i)(7) beyond

a reasonable doubt and that these aggravating circumstances outweigh the mitigating circumstances

offered by Mr. Banks. Finally, we have considered the nature of Mr. Banks’s crime and all the

evidence in the record concerning Mr. Banks as a person, and we have concluded that the sentence

of death imposed by the jury in this case is neither excessive nor disproportionate to the penalties

imposed for similar offenses. 

A.

The Manner in which Mr. Banks’s Sentence was Imposed

The jury that imposed Mr. Banks’s sentence of death unanimously found that the State

proved beyond a reasonable doubt that Mr. Banks was guilty of premeditated first degree murder and

first degree murder in the perpetration of a robbery. In addition, the jury determined that the State

proved beyond a reasonable doubt that the manner in which the murder occurred supported the

application of the aggravating circumstances in Tenn. Code Ann. § 39-13-204(i)(6) and Tenn. Code

Ann. § 39-13-204(i)(7). Our review of the record satisfies each of us that the trial, and particularly

the sentencing hearing, was conducted in a manner consistent with the applicable statutory

provisions and the rules of criminal procedure. Accordingly, we conclude that Mr. Banks’s sentence

of death was not imposed in an arbitrary fashion. See, e.g., State v. Young, 196 S.W.3d at 115; State

v. Hugueley, 185 S.W.3d 356, 380 (Tenn. 2006); State v. Hall, 958 S.W.2d at 702.

B.

The Evidentiary Support for the Aggravating Circumstances

We have already discussed in detail the evidentiary support for the two aggravating

circumstances that the jury found to exist in this case. These aggravating circumstances are fully

supported by the record. 

C.

The Relative Weight of the Aggravating and Mitigating Circumstances

In carrying out our obligation under Tenn. Code Ann. § 39-13-206(c)(1)(C), we must

determine whether a reasonable juror could find beyond a reasonable doubt that the aggravating

circumstances established by the State outweigh the mitigating circumstances presented by the

defendant. State v. Rimmer, 250 S.W.3d at 34; State v. Stephenson,195 S.W.3d 574, 593-94 (Tenn.

2006). Following a detailed review of this record, we find that a reasonable jury could find, based

on the evidence in this case, that the aggravating circumstances outweigh the mitigating

circumstances.

Mr. Banks presented and established numerous mitigating circumstances that were intended

to present him in a sympathetic light. The eleven witnesses testifying on his behalf pointed out (1)

that Mr. Banks was only nineteen years old when he killed Mr. Al-Maily, (2) that Mr. Banks
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developed HIV when he was sixteen years old, (3) that Mr. Banks had remained employed, (4) that

Mr. Banks frequently transferred from one school to another during his childhood, (5) that Mr.

Banks’s mother was often absent during his childhood because she was either in prison or in a

halfway house, (6) that Mr. Banks’s parents did not provide him adequate support, (7) that Mr.

Banks had nine siblings and that he was the youngest of seven brothers, (8) that Mr. Banks was

picked on by his older siblings when he was a child, (9) that Mr. Banks was an active member of the

Leewood Baptist Church, (10) that Mr. Banks’s artistic and culinary skills included drawing pictures

and cooking, (11) that Mr. Banks had been a model prisoner, (12) that while incarcerated, Mr. Banks

had participated in and completed numerous rehabilitation certificate programs, (13) that members

of Mr. Banks’s church and family wished to remain in contact with him, (14) that two of Mr.

Banks’s sisters were raped, (15) that Mr. Banks loved animals, particularly dogs, and (16) that Mr.

Banks was a positive member of his church and a gentle person.

The State presented evidence that undermined Mr. Banks’s mitigation evidence. This

evidence showed that, despite the confinement of Mr. Banks’s mother, Mr. Banks and his mother

had a close relationship. It also showed that Mr. Banks had a loving and supportive relationship with

his grandmother before her death and that he was also cared for by his older siblings and members

of the Leewood Baptist Church. In other words, Mr. Banks actually had a great deal of support

during his childhood from his extended family and his church community. 

The mitigation evidence regarding his kind, gentle nature was also undermined by evidence

of his criminal history which included assault, battery, and domestic violence. In contrast to the

testimonyregarding Mr. Banks’s gentle nature, his former girlfriend described how Mr. Banks could

be extremely cruel and violent. She recounted numerous incidents of domestic violence, including

one incident in which Mr. Banks pulled a gun and pointed it at her stomach when she was eight

months pregnant.

Based on this evidence, a rational juror could easily have concluded that the aggravating

circumstances – killing a witness to avoid arrest and prosecution and killing in the perpetration of

a robbery – outweighed the various mitigating circumstances presented by Mr. Banks, particularly

his youth, his health, his difficult family circumstances, his active involvement in his church

community, and his active involvement in rehabilitation certificate programs in prison.

D.

The Proportionality of Mr. Banks’s Sentence

When this Court conducts the proportionality review required by Tenn. Code Ann. § 39-13-

206(c)(1)(D), we do not function as a “super jury” that simply substitutes our judgment for the

sentencing jury. State v. Godsey, 60 S.W.3d 759, 782 (Tenn. 2001). Rather, our task is to take a

broader perspective than the jurors who sentenced Mr. Banks in order to determine whether his death

sentence “is disproportionate to the sentences imposed for similar crimes and similar defendants.”

State v. Thacker, 164 S.W.3d at 232 (quoting State v. Bland, 958 S.W.2d at 664). In doing so, the

pool of cases upon which we draw in conducting this analysis are “first degree murder cases in which

the State sought the death penalty, a capital sentencing hearing was held, and the jury determined
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whether the sentence should be life imprisonment, life imprisonment without possibility of parole,

or death.” State v. Rice, 184 S.W.3d at 679. 

No two defendants or their crimes are ever identical. Accordingly, the purpose of our review

of other capital cases is not to identify cases that correspond precisely with the particulars of the one

being analyzed. State v. Copeland, 226 S.W.3d 287, 306 (Tenn. 2007); State v. Thacker, 164

S.W.3d at 233. Instead, our task is to “identify and invalidate the aberrant death sentence.” State v.

Thacker, 164 S.W.3d at 233 (quoting State v. Bland, 958 S.W.2d at 665). A sentence is not

disproportionate because other defendants have received a life sentence under similar circumstances.

State v. Carruthers, 35 S.W.3d 516, 569 (Tenn. 2000). Rather, a death sentence will be excessive

or disproportionate where “the case taken as a whole is plainly lacking in circumstances consistent

with those in cases where the death penalty has been imposed.” State v. Thacker, 164 S.W.3d at 233

(quoting State v. Bland, 958 S.W.2d at 668); State v. Godsey, 60 S.W.3d at 782. 

This Court uses “the precedent-seeking method of comparative proportionality review, in

which we compare a case with cases involving similar defendants and similar crimes.” State v.

Copeland, 226 S.W.3d at 305 (quoting State v. Davis, 141 S.W.3d at 619 -620). We examine “the

facts and circumstances of the crime, the characteristics of the defendant, and the aggravating and

mitigating circumstances involved, and we compare this case with other cases in which the

defendants were convicted of the same or similar crimes.” State v. Stevens, 78 S.W.3d at 842. Our

approach does not employ a rigid, objective test. Rather, each member of the Court draws upon his

or her experience and judgment in comparing the case being reviewed with other cases. See State

v. Bland, 958 S.W.2d at 668.

When we conduct this comparison with regard to the nature of the crime, we generally

consider “(1) the means of death; (2) the manner of death; (3) the motivation for the killing; (4) the

place of death; (5) the victim’s age, physical condition, and psychological condition; (6) the absence

or presence of premeditation; (7) the absence or presence of provocation; (8) the absence or presence

of justification; and (9) the injury to and effect upon non-decedent victims.” State v. Rimmer, 250

S.W.3d at 35; see also State v. Rollins, 188 S.W.3d at 575. With regard to the defendant, we

generally compare the defendant’s “(1) prior criminal record, if any; (2) age, race, and gender; (3)

mental, emotional, and physical condition; (4) role in the murder; (5) cooperation with authorities;

(6) level of remorse; (7) knowledge of the victim’s helplessness; and (8) potential for rehabilitation.”

State v. Rimmer, 250 S.W.3d at 35; see also State v. Rollins, 188 S.W.3d at 575.

We turn first to the nature of Mr. Banks’s offense. Several days before Mr. Banks shot Mr.

Atilebawi and then shot and killed Mr. Al-Maily, he formulated a plan with Mr. Hilliard to extract

revenge on Mr. Atilebawi for conduct that had allegedly occurred almost one year earlier. He

obtained a firearm from Mr. Hilliard and then waited for the opportunity to strike.

This opportunity came during the early morning hours of September 16, 2002 when Mr.

Banks went to Mr. Atilebawi’s home for the purpose ofseeking revenge. The fact that Mr. Al-Maily

was visiting Mr. Atilebawi did not deter Mr. Banks. Carrying out the plan he had devised with Mr.

Hilliard, Mr. Banks shot Mr. Atilebawi four times and then tried to conceal his body. After shooting

Mr. Atilebawi, Mr. Banks robbed Mr. Al-Maily and then ordered him to lie face down on the floor
-64-

of Mr. Atilebawi’s bedroom. Mr. Al-Maily did not resist. After looting Mr. Atilebawi’s house and

loading the stolen personal property into a stolen Jeep Cherokee, Mr. Banks calmly and deliberately

returned to Mr. Atilebawi’s house, walked to Mr. Atilebawi’s bedroom where Mr. Al-Maily was

lying on the floor, and fatally shot Mr. Al-Maily in the back of the head. Mr. Banks and Mr. Hilliard

then left the scene of their crimes with the stolen property and the stolen automobiles. Later that

morning, apparently believing that both Mr. Atilebawi and Mr. Al-Maily were dead, Mr. Banks went

on a spending spree with the money he had stolen from Messrs. Atilebawi and Al-Maily. 

Mr. Banks had no personal animosity towards Mr. Al-Maily. In fact, he characterized their

relationship as friendly. Shooting Mr. Al-Maily was not part of Mr. Banks’s plan of revenge against

Mr. Atilebawi. Neither was it necessary to commit the offense, because Mr. Al-Maily cooperated

fully with Mr. Banks during the robbery and offered no resistence whatsoever to either Mr. Banks

or Mr. Hilliard. Mr. Banks shot Mr. Al-Maily in the back of the head because he did not want to

leave behind any live witnesses to his crimes. 

We now turn to Mr. Banks himself. While he opted not to testify on his own behalf during

the sentencing phase, he called eleven mitigation witnesses. These witnesses presented a positive

and sympathetic image of Mr. Banks. An implicit, and at times explicit, undercurrent of much of

the testimony focused on the fact that Mr. Banks was only nineteen years old when he murdered Mr.

Al-Maily. 

Mr. Banks was part of a large family that faced significant social and financial challenges.

Despite the lengthy periods when his mother was in custody, he had a close relationship with his

mother and received support from his grandmother, his older siblings, and members of his church.

While many of his family and friends saw Mr. Banks’s soft-hearted and gentle side, Mr. Banks

became capable of resorting to cruelty and violence. By the time he murdered Mr. Al-Maily, he had

been convicted of assault, battery, and domestic violence. He did not tell his former girlfriend that

he was HIV-positive, and he pointed a gun to her stomach when she was eight months pregnant. 

We find that the death sentence, as applied to Mr. Banks in this case, is neither excessive nor

disproportionate when compared to defendants in other cases. For example, in State v. Thacker this

Court expressly noted that “[w]e have upheld the death penalty in several similar cases where the

defendant stole from the victims and committed murder to avoid arrest or prosecution.” State v.

Thacker, 164 S.W.3d at 233. Additionally, in State v. Davis we observed that we have “frequently

upheld the death penalty in first degree murder cases involving shooting offenses committed in the

course of a robbery or other felony.” State v. Davis, 141 S.W.3d at 621.

The following are among the cases in which this Court determined that application of the

death penalty was not disproportionate in light of other similar circumstances. In State v. Thacker,

the defendant stabbed a wrecker driver who discovered that the defendant was using a stolen credit

card. The defendant later returned to conceal the body and to steal the victim’s credit cards and cash.

State v. Thacker, 164 S.W.3d at 233. In State v. Reid, the defendant shot and killed two unresisting

employees while they were lying face down on the floor as part of a planned and premeditated

robbery in order to avoid arrest or prosecution. State v. Reid, 91 S.W.3d at 287. In State v. Sims,

the defendant shot the victim in the back of head during a burglary of the victim’s home in order to
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prevent identification. State v. Sims, 45 S.W.3d 1, 19 (Tenn. 2001). In State v. Chalmers, the Court

upheld a death sentence where a defendant shot the victim five times as part of a robbery. State v.

Chalmers, 28 S.W.3d 913, 915, 919 (Tenn. 2000). Finally, in State v. King, the Court upheld the

conviction of a defendant who fatally shot a tavern owner who was not resisting at the time. State

v. King, 694 S.W.2d 941, 943, 947 (Tenn. 1985).

We have also concluded that the mitigating circumstances in this case do not carry a

disproportionately heavier weight than the mitigating circumstances in other cases in which the death

penalty has been approved. The death penalty has been found proportional in a number of cases

involving defendants who were as young as or younger than Mr. Banks when they murdered their

victims. State v. Davis, 141 S.W.3d at 621-22 (eighteen-year-old defendant); State v. Berry, 141

S.W.3d at 571-72 (nineteen-year-old defendant); State v. Pike, 978 S.W.2d at 922-23 (eighteen-yearold defendant). Application of the death penalty has also been found not to be excessive in cases

where the defendant experienced a difficult family life with parents in prison or otherwise absent,

resulting in being raised with and by siblings and a grandmother. State v. Davis, 141 S.W.3d at 621-

22; State v. Berry, 141 S.W.3d at 571. In terms of being a model prisoner, this Court has found

evidence of being a model inmate, including being a positive uplifting member to the prisoner

community, not to render application of the death penalty disproportionate. State v. Austin, 87

S.W.3d 447, 457-58 (Tenn. 2002). Nor has suffering from disease or maintaining close contact with

family members been sufficient to render a death sentence excessive. State v. Austin, 87 S.W.3d at

458. 

Considering the aggravating and mitigating circumstances in this case in light of all the

evidence in this case, we find that Mr. Banks’s conviction and sentence are not “plainly lacking in

circumstances consistent with those in cases where the death penalty has been imposed.” State v.

Thacker, 164 S.W.3d at 233 (quoting State v. Bland, 958 S.W.2d at 668); State v. Godsey, 60

S.W.3d at 782. Accordingly, we find the application of the death sentence in this case to be neither

disproportionate nor excessive.

XXI.

In summary, we have concluded that the Court of Criminal Appeals dealt correctly with

regard to all the issues raised by Mr. Banks on this appeal except the trial court’s submission of the

Tenn. Code Ann. § 39-13-204(i)(6) aggravating factor to the jury. We have determined that the

Court of Criminal Appeals erred by concluding that Tenn. Code Ann. § 39-13-204(i)(6) was not

supported bysufficient evidence. Therefore, we reverse the Court of Criminal Appeals’s disposition

of that issue, but affirm the judgment of the Court of Criminal Appeals in all other respects.

Mr. Banks’s sentence of death shall be carried out on December 9, 2009, unless otherwise

ordered by this Court or other proper authority. It appearing that Mr. Banks is indigent, the costs of

this appeal are taxed to the State of Tennessee.

______________________________

WILLIAM C. KOCH, JR., JUSTICE
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APPENDIX

(Excerpts from the Decision of the Court of Criminal Appeals)

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

April 10, 2007 Session

STATE OF TENNESSEE v. DEVIN BANKS

Direct Appeal from the Criminal Court for Shelby County

No. 03-01956 Joseph B. Dailey, Judge

No. W2005-02213-CCA-R3-DD - Filed July 6, 2007

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed 

DAVID G. HAYES, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and

ALAN E. GLENN, JJ., joined.

Robert Jones, Shelby County Public Defender; Phyllis Aluko and Tony 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 Moore, Solicitor General; Clarence

Lutz, Assistant Attorney General; William L. Gibbons, District Attorney General, Stacy McEndree,

Assistant District Attorney General, and Karen Cook, Assistant District Attorney General, for the

Appellee, State of Tennessee.

OPINION

[Section III]

Failure to Charge Aggravating Circumstances in Indictment

The Appellant asserts that the “imposition of the death penalty . . . violated due process of

law because the aggravating circumstances were not set forth in the indictment.” In this regard, he

contends that “[a]ny fact that increases the maximum penalty for a crime must be charged in an

indictment, submitted to a jury, and proven beyond a reasonable doubt in order to satisfy the 5th

Amendment’s Due Process Clause and the 6th Amendment’s notice and jury trial guarantees.” With

reliance upon Apprendi v. New Jersey and Ring v. Arizona, the Appellant submits that he was denied

due process of law because the indictment returned by the grand jury did not include facts that would

qualify him for the death penalty. In other words, he maintains that first degree murder is not a

capital offense unless accompanied by aggravating factors. In order to elevate the crime to capital
-67-

murder, he alleges that the indictment must include language of the statutory aggravating

circumstance(s).

The Tennessee Supreme Court has consistently rejected this argument by holding that

aggravating circumstances need not be pled in the indictment. State v. Reid, 164 S.W.3d 286, 312

(2005); Leach, 148 S.W.3d at 59; Berry, 141 S.W.3d at 562; State v. Holton, 126 S.W.3d 845, 863

(Tenn. 2004); State v. Dellinger, 79 S.W.3d 458, 467 (Tenn. 2002). Our supreme court explained,

“[t]he focus in Apprendi, Ring, and Blakely was on the Sixth Amendment right to trial by jury,” and

“the Court expressly declined to impose the Fifth Amendment right to presentment or grand jury

indictment upon the States.” Berry, 141 S.W.3d at 560. The Appellant is not entitled to relief on

this issue.

[Section IV]

Introduction of Photograph of the Victim

During the testimony of Leonard Porter, a criminal investigator for the District Attorney

General’s Office, the prosecutor moved to admit a photograph of Atilebawi’s injuries. The

photograph, taken the week of the trial, depicted the right side of the victim’s head and showed a

large scar beginning at his forehead and continuing to the back of his head. The prosecutor stated

that introduction of the photograph was relevant to “show all of these elements of the criminal

attempt murder in the first degree. . . .” She further explained that no photographs of Atilebawi’s

injuries were taken at either “the crime scene or the hospital because they were trying to save his life.

. . .” The Appellant objected stating that the victim had testified in person and that the photograph

failed to prove any element of the crime. The trial court made the following ruling regarding the

admission of the photograph:

Well, my response to all of what all of you have said would be that as

to relevance, it’s very relevant. I mean, there is no question it was

relevant. It shows the horrific nature of the severe injury that this

man sustained, and it tends to corroborate what he testified to and

what the doctor from The Med testified to.

It’s not prejudicial in that it doesn’t show – it’s not gory or bloody,

and the jury saw him when he was in here yesterday and saw

essentially the same injury. The only – I think the only plausible

argument against allowing it in would be that it would be cumulative.

The victim was in here yesterday.

But I think that the State’s burden to prove their case, I think gives

them the right to introduce one photograph. They’re not asking to

introduce ten or [twenty] but to introduce one photograph that can be

shown to the jury to corroborate the injuries that were testified to by

the victim himself and by the doctor from The Med . . . [t]o show the

injuries in general. To show that this man was severely injured by the
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gunshot wounds to the back of the head, that half his head was blown

off to show all of those things of course.

The trial court continued:

. . . It is relevant and it’s not prejudicial. It is perhaps somewhat

cumulative but that – for example, had the State offered it into

evidence when this victim was on the stand, I would have let them

introduce it at that time because I think it’s fair to allow at least one

photograph of injuries, even though the person is sitting here live at

this point in time, to document the record, to remind the jury later in

the trial, at closing argument, during deliberations, that this is what

this man looks like so that there is an actual photograph of it.

Photographs are always by their nature cumulative to some extent. By

definition, a photograph is going to be cumulative of something else.

You can always have a person come in and testify to what a

photograph otherwise depicts. . . .

. . . And a photograph will provide [the jury] with that documented

evidence that they can look at of injuries that they saw in person four

or five days earlier. . . .

On appeal, the Appellant contends that the trial court erred in permitting the introduction of

the photograph of the surviving victim, arguing that the trial court should have excluded the

photograph because of the inevitable danger of unfair prejudice. Additionally, he asserts that the

photograph exaggerated the victim’s injuries and was irrelevant, as the photograph was taken years

after the incident. Finally, the Appellant contends that, since the jury had already seen Atilebawi’s

injuries during his testimony at trial, the admission of the photograph was prejudicially cumulative.

The State responds that the trial court’s ruling was proper. Specifically, the State contends that the

photograph was relevant to establish the Appellant’s intent to murder Atilebawi and that it

establishes that Atilebawi suffered serious bodily injury. Both elements are necessary to support

convictions of attempted first degreemurder and especially aggravated robbery. See T.C.A. § 39-13-

202, -403. The State also contends that the photograph illustrated the testimony of Dr. Timmons and

Atilebawi.

The admission of photographs is generally discretionary with the trial court and, absent an

abuse of that discretion, will not result in the grant of a new trial. State v. Banks, 564 S.W.2d 947,

949 (Tenn. 1978). However, a photograph must be relevant to an issue that the jury must decide

before it may be admitted into evidence. State v. Vann, 976 S.W.2d 93, 102 (Tenn. 1998), cert.

denied, 526 U.S. 1071, 119 S. Ct. 1467 (1999); State v. Braden, 867 S.W.2d 750, 758 (Tenn. Crim.

App. 1993); see also Tenn. R. Evid. 401, 402. Evidence that is not relevant to prove some part of

the prosecution’s case should not be admitted solely to inflame the jury and prejudice the defendant.

Additionally, the probative value of the photograph must outweigh any unfair prejudicial effect that

it may have upon the trier of fact. Vann, 976 S.W.2d at 102-03; see also Tenn. R. Evid. 403
It is undisputed that, during the course of the Appellant’s representation, certain reassignments in the Public 2

Defender’s Office resulted in Attorney Thackery being relieved from this case. Attorney White was appointed in her

(continued...)

-69-

(“[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed

by the danger of unfair prejudice”).

While it can be said that photographs of crime victims who suffer serious bodily injury are

prejudicial by their very nature, a prejudicial photograph is not per se excludable. What is excluded

is evidence which is unfairly prejudicial, in other words, evidence which has an undue tendency to

suggest a decision on an improper basis, frequently, though not necessarily, an emotional one.

Banks, 564 S.W.2d at 951.

The trial court determined that the photograph was relevant and not prejudicial. We agree

that the photograph was relevant to supplement the testimony of Dr. Timmons, as well as that of the

victim himself. See State v. Cole, 155 S.W.3d 885, 913 (Tenn. 2005) (Appendix), cert. denied, 546

U.S. 829, 126 S. Ct. 47 (2005). We also agree that the trial court’s acknowledgment of the need to

preserve a record for the jury is accurate. Additionally, the photograph in question is not particularly

gruesome. Thus, we conclude that the probative value of the photograph is not outweighed by its

prejudicial effect, and the trial court did not abuse its discretion in allowing its admission. Further,

it does not affirmatively appear that the “admission of the photograph[] has affected the results of

the trial.” See Banks, 564 S.W.2d at 953. The Appellant is not entitled to relief on this issue.

[Section V]

Admission of the Appellant’s Statement

The Appellant next argues that the trial court erred in permitting introduction of statements

made by the Appellant without first ruling on the Appellant’s motion to suppress those statements.

The State responds that the issue is waived because the Appellant failed to pursue the motion to

suppress. 

The record before this court reflects that the Appellant filed a motion to suppress his

statements on July 16, 2003, alleging that his statements were involuntarily given as he was under

duress at the time the statements were made. A hearing was conducted on July 25, 2003, during

which time the Appellant requested and was granted a continuance until October 31, 2003. As the

State correctly asserts, the record is silent as to whether the Appellant actively pursued the motion

to suppress after this point. The record does indicate that on April 4, 2005, before voir dire of the

jury panel commenced, the Appellant’s counsel made the following remarks:

Judge, I looked through the court jacket this morning, making sure

since I was not on this case originally or at the time the motions were

heard and I believe that all motions that have been filed have been

discussed and ruled upon except for the 608, 609 motion that Your

Honor took under advisement.2
(...continued) 2

place. Prior to trial, Attorney White was relieved, resulting in the appointment of Attorney Kent.

-70-

During the State’s case-in-chief, the Appellant’s statements to law enforcement officers were

admitted without any objection by the Appellant. Additionally, the Appellant, in his motion for new

trial, raised the issue of whether the trial court erred in denying the motion to suppress, supporting

the conclusion that the motion was in fact denied. 

It is clear from the record before this court that, at the trial level, the Appellant proceeded

under the assumption that the trial court had denied his motion to suppress. The Appellant, however,

now maintains on appeal that he did not abandon the suppression issue. He adds that the fact that

the trial court failed to state itsfindings on the record violated his constitutional rights to due process

and to a fair jury trial, in addition to violating Tenn. R. Crim. P. 12(e).

From the actions of the parties and the trial court during the trial, including the failure of the

Appellant to object to the introduction of the statements, it appears that all parties believed that the

motion to suppress had been denied. Most notably, the trial court’s admission of the statements

during the trial suggests that the trial court was under the assumption that it had overruled the

Appellant’s motion. While the record presently before this court does not contain an order of the

trial court reflecting its ruling upon the motion, we cannot conclude that its absence is dispositive.

It is the burden of the Appellant to prepare a full and complete record for appellate review. See

Tenn. R. App. P. 24(b). Moreover, the record clearly reflects that no objection was made by the

Appellant to the admission of his statements at trial.

 Even assuming for argument’s sake that no ruling was ever made by the trial court, it was

the Appellant who failed to obtain a ruling on that motion and failed to object when the evidence was

introduced at trial. Accordingly, we agree with the State that the Appellant has abandoned the

motion by failing to call to the trial court’s attention the lack of a ruling on his suppression motion

and by failing to object to the admission of the statements at trial. See Tenn. R. App. P. 36(a). If

a motion is not acted upon, the litigant should renew it. “He may not lull the judge into thinking that

it has been abandoned and then, after he has lost, pull a rabbit out of his pocket in the form of a

forgotten motion.” United States v. Taglia, 922 F.2d 413, 416-17 (7th Cir.), cert. denied, 500 U.S.

927, 111 S. Ct. 2040 (1991). As noted, the Appellant failed to renew his motion or ask for a ruling

prior to voir dire. Later, when the State sought introduction of his statements, the Appellant

remained silent and made no objection. 

A similar issue was addressed by the Court of Appeals in Grandstaff v. Hawks, 36 S.W.3d

482 (Tenn. Ct. App. 2000). In Grandstaff, the trial court did not unequivocally overrule a motion

in limine. The Court of Appeals determined that the motion in limine should have been renewed by

objection and that the failure to renew the motion in limine had waived the issue. In reaching this

conclusion, the Court of Appeals held:

Objections to the introduction of evidence must be timely and

specific. See Overstreet v. Shoney’s, Inc., 4 S.W.3d 694, 702 (Tenn.
-71-

Ct. App. 1999). An evidentiary objection will be considered timely

either if it is made in a motion in limine or if it is made at the time the

objectionable evidence is about to be introduced. See Wright v.

United Servs. Auto. Ass’n, 789 S.W.2d 911, 914 (Tenn. Ct. App.

1990). A party who files an unsuccessful motion in limine need not

renew the motion when the evidence is introduced as long as the trial

court “clearly and definitively” overruled the motion in limine when

it was made. See State v. Brobeck, 751 S.W.2d 828, 833-34 (Tenn.

1988); State v. McGhee, 746 S.W.2d 460, 462 (Tenn. 1988); Wright

v. United Servs. Auto. Ass’n, 789 S.W.2d at 914. If, however, the

trial court has not “clearly and definitively” acted on the motion, the

moving party must renew the motion contemporaneously with the

introduction of the objectionable evidence. Failure to renew the

motion will preclude the moving party from taking issue on appeal

with the admission of the evidence.

Grandstaff, 36 S.W.3d at 488. 

Tennessee law is well-established that a party who invites or waives error, or who fails to

take reasonable steps to cure an error, is not entitled to relief on appeal. See Tenn. R. App. P. 36(a).

Moreover, if waived, this court will not consider the issue on appeal unless it is clear from the record

that plain error was committed. 

The motion to suppress filed by the Appellant on July 15, 2003, presented two allegations

in support of his contention that the statements were taken in violation of his constitutional rights,

namely that:

1. The [Appellant] did not freely, knowingly and voluntarily give 

 said statements.

2. The [Appellant] made said statements while under duress.

No additional facts or argument were presented in support of the motion. At the July 25,

2003 motion to suppress hearing, Sergeant Mark Miller testified that the Appellant was advised of

his rights and signed a waiver of rights form. The Appellant informed Sergeant Miller that he had

an eleventh grade education. Sergeant Miller stated that the Appellant understood English and could

read and write. In addition to the written waiver, the Appellant verbally indicated that he understood

and waived his constitutional rights. Sergeant Miller testified that, at no time, did he threaten,

coerce, or make promises to the Appellant. 

Sergeant James Fitzpatrick testified that, one day after the Appellant’s initial statement, the

Appellant informed law enforcement officials that he wanted to change some facts related in his

initial statement. Sergeant Fitzpatrick permitted the Appellant to make corrections to the statement.

Sergeant Fitzpatrick observed that the Appellant had no problems communicating and appeared to

be of sound mind. The Appellant never requested an attorney. Sergeant Fitzpatrick testified that,

at no time, did he threaten, coerce, or make promises to the Appellant. He also recalled that the
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Appellant was permitted to use the restroom during the interview and that the Appellant stopped to

eat on two occasions. 

Inherent in the admissibility of the written statement is that the statement was voluntarily

given by a defendant knowledgeable of his constitutional rights and accompanied by a valid and

knowing waiver of those rights. State v. Berry, 141 S.W.3d 549, 577 (Tenn. 2004) (quoting Miranda

v. Arizona, 384 U.S. 436, 467, 86 S. Ct. 1602, 1624 (1966); State v. Middlebrooks, 840 S.W.2d 317,

326 (Tenn. 1992), cert. dismissed, 510 U.S. 124, 114 S. Ct. 651 (1993)). In determining the

admissibility of a confession, the particular circumstances of each case must be examined as a whole.

Berry, 141 S.W.3d at 577 (citing State v. Smith, 933 S.W.2d 450, 455 (Tenn. 1996)). A defendant’s

subjective perception alone is not sufficient to justify a conclusion of involuntariness in the

constitutional sense. Id. (citations omitted). The primary consideration in determining the

admissibility of the evidence is whether the confession is an act of free will. Id. at 578 (citing State

v. Chandler, 547 S.W.2d 918, 920 (Tenn. 1977)). A confession is not voluntary when “the behavior

of the state’s law enforcement officials was such as to overbear” the will of an accused and “bring

about confessions not freely self-determined.” Id. (citing State v. Kelly, 603 S.W.2d 726, 728 (Tenn.

1980)). 

The testimony revealed that the Appellant’s communication skills appeared adequate and that

he was capable of reading, writing, and comprehension. The Appellant was advised of his

constitutional rights and, without coercion or force, voluntarily waived his rights and provided an

inculpatory statement. Neither officer indicated that the Appellant was under duress at the time he

made his two statements. The officers provided the Appellant with food and restroom breaks during

the interview process, and the Appellant never asked for an attorney. Therefore, we conclude that

the Appellant knowingly waived his Miranda rights and voluntarily provided the statements to the

police. Thus, the Appellant is not entitled to relief on this issue.

[Section XI]

Victim Impact Jury Instruction was Coercive

The Appellant next contends that “[t]he jury instructions given by the trial judge with respect

to the jury’s consideration of victim impact evidence constituted a coercive instruction.” In

instructing the jury, the trial court provided the following instruction as to victim impact evidence:

The prosecution has introduced what is known as victim impact

evidence. This evidence has been introduced to show the financial,

emotional, psychological or physical effects of the victim’s death on

the members of the victim’s immediate family and close friends. You

may consider this evidence in determining an appropriate

punishment.

However, your consideration must be limited to a rational inquiry into

the culpability of the [Appellant], not an emotional response to the

evidence. Victim impact evidence is not the same as an aggravating
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circumstance. Proof of an adverse impact on the victim’s family or

close friends is not proof of an aggravating circumstance.

Introduction of victim impact evidence in no way relieves the State

of its burden to prove beyond a reasonable doubt to you at least one

aggravating circumstance which has been alleged.

You may consider this victim impact evidence in determining the

appropriateness of the death penalty only if you first find the

existence of one or more aggravating circumstances has been proven

beyond a reasonable doubt by evidence independent from the victim

impact evidence and find that the aggravating circumstance or

circumstances found outweigh the finding of one or more mitigating

circumstances beyond a reasonable doubt.

The Appellant, relying upon Johnson v. Hardin, 926 S.W.2d 236, 242 (Tenn. 1996), asserts

that the trial court’s instruction “amounts to an undue intrusion into the exclusive province of the

jury.” He adds that “there is a reasonable probability that the instruction coerced a finding by the

jury that the aggravating circumstances outweighed the mitigating circumstances because to find

otherwise would require the jury to ignore the emotional victim impact evidence presented by the

State.” The Appellant’s reliance upon Johnson is misplaced because in Johnson our supreme court

addressed the issue of the trial court’s deliverance of a “dynamite charge” to a deadlocked jury. The

instruction in Johnson “raised [to the deadlocked jury] the specter of the time, effort, and money that

a new trial would entail.” Johnson, 926 S.W.2d at 243. The charge suggested that the jurors had

a duty to agree. In this regard, our supreme court held “[n]othing should be done or said to a juror

which can in any manner be taken by that juror to indicate that he or she should abandon an honestly

held conviction in order to reach a verdict so that time and money will be saved.” Id. (quoting Bass

v. Barksdale, 671 S.W.2d 476, 486 (Tenn. Crim. App. 1984). Such a situation is not presently before

the court, as the factual circumstances in Johnson are clearly distinguishable from those in the

present case.

In fact, the instruction provided to the jury in the present case was recommended by our

supreme court in State v. Nesbit, 978 S.W.2d 872, 892 (Tenn. 1998), and was again approved in

State v. Reid, 91 S.W.3d 247, 283 (Tenn. 2002). See also State v. Riels, 216 S.W.3d 737 (Tenn.

2007); Reid, 164 S.W.3d at 336-37 (Appendix); Cole, 155 S.W.3d at 914 (approving Nesbit victim

impact instruction). Moreover, in Reid, our supreme court specifically noted that any contradiction

arising between the instruction and the statute inured to the benefit of the defendant and, thus, should

not entitle a defendant to relief. Reid, 91 S.W.3d at 283. Accordingly, the Appellant is not entitled

to relief on this issue.