Banks v. State
| Docket Number: | 2008-KA-01523-COA Linked Case(s): 2008-KA-01523-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 02-23-2010 Opinion Author: Maxwell, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Aggravated assault - Theory-of-the-case instruction - Impeachment - M.R.E. 616 - M.R.E. 801(c) - M.R.E. 613 - Criminal record - Closing argument Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Griffis, Ishee, Roberts and Carlton, JJ. Non Participating Judge(s): Irving, J. Concurs in Result Only: Barnes, J. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 08-15-2008 Appealed from: YAZOO COUNTY CIRCUIT COURT Judge: Jannie M. Lewis Disposition: CONVICTED OF AGGRAVATED ASSAULT AND SENTENCED AS A HABITUAL OFFENDER TO TWENTY YEARS IN THE CUSTODY OF MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION District Attorney: James H. Powell, III Case Number: 27-0571 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | DANIEL BANKS A/K/A DANNY BANKS |
IMHOTEP ALKEBU-LAN |
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| Appellee: | STATE OF MISSISSIPPI | OFFICE OF THE ATTORNEY GENERAL: LAURA HOGAN TEDDER | ||
Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Aggravated assault - Theory-of-the-case instruction - Impeachment - M.R.E. 616 - M.R.E. 801(c) - M.R.E. 613 - Criminal record - Closing argument |
| Summary of the Facts: | Daniel Banks was convicted of aggravated assault and was sentenced as a habitual offender to twenty years. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Theory-of-the-case instruction Banks argues the circuit judge committed reversible error by denying his proposed theory-of-the-case instruction. An instruction should not single out certain parts of the evidence to the point that it amounts to a comment on the evidence. Banks’s proposed instruction was not only a comment on the evidence, but was also fairly covered by the substantive aggravated assault instruction given by the circuit judge. Issue 2: Impeachment evidence Banks argues he should have been permitted to question his mother about the victim’s alleged statement. Under M.R.E. 616, it is a permissible means of impeaching a witness to attempt to show that the witness is, for some reason, biased or prejudiced for or against a party. Evidence of bias is admissible for attacking witness credibility - bias is always material and may be proven by extrinsic evidence. Furthermore, M.R.E. 801(c) cmt. provides that if the significance of a statement is simply that it was made and there is no issue about the truth of the matter asserted, then the statement is not hearsay. Here, the proposed testimony was offered to show the victim was allegedly biased against her son, which would have contradicted the victim’s earlier testimony that he had no prior ill will toward Banks. Pursuant to M.R.E. 613, Banks’s mother’s proposed testimony was proper extrinsic evidence to impeach Palmer’s earlier denial of bias against Banks. Thus, the circuit judge abused her discretion by prohibiting Banks from developing this impeachment evidence. However, ample evidence was presented to support Banks’s conviction, and the error is therefore harmless. Issue 3: Criminal record Banks argues that a reference to his criminal record and the prosecutor’s corrective actions during later questioning were each independent grounds for a mistrial. A prosecution witness’s statement about a defendant’s criminal record is generally improper and inadmissible. However, where the witness refers briefly to another crime, and the testimony was not purposely elicited by the district attorney to prove the defendant’s character, no reversible error occurs. Here, the witness made no reference to any specific crimes. In addition, the judge was quick to take remedial action. Thus, the court did not err in failing to grant a mistrial. Issue 4: Closing argument Banks argues that the State improperly commented on his decision not to testify and attempted to shift the burden to him to prove his own innocence. There is a difference between a comment on the defendant’s failure to testify and a comment on the defendant’s failure to put on a successful defense. The State is entitled to comment on the lack of any defense, and such comment will not be construed as a reference to the defendant's failure to testify by innuendo and insinuation. Here, the State made no reference to Banks’s choice not to testify, nor did it attempt to shift the burden of proof from the State to Banks. It is apparent from the record that the prosecutor was responding to defense counsel’s closing argument that one of the witnesses was a drunk and that “alcohol affected her memory” of the events surrounding the stabbing. |
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