Calvin Banks was convicted of capital murder in the Clay County Circuit Court and sentenced to life imprisonment without parole as a habitual offender. He appealed, raising multiple issues:
1. The admissibility of testimony from Homer Ivy regarding a conversation during religious counseling.
2. The inclusion of testimony from Tony Abshire about Banks' poor money management.
3. The acceptance of hearsay testimony regarding confessions made to a cellmate.
4. The district attorney's characterization of Banks as a "predator" during closing arguments.
5. The mention of a "bologna sandwich" by the district attorney, claimed as reversible error.
6. The rejection of Banks' motion for judgment notwithstanding the verdict or for a new trial due to the jury's verdict allegedly being against the overwhelming weight of evidence.
The Supreme Court of Mississippi affirmed the conviction and sentence, finding no errors in the trial court's decisions. The facts revealed that Banks had been gambling before the murder of Amy Ware, with no signs of forced entry at the crime scene. He was seen near the victim's home around the time of her death and later exhibited suspicious behavior when questioned by police. Additionally, he made contradictory statements about his involvement and had discussions with other inmates that suggested complicity in the crime.
Banks asserts that the trial court erred in permitting Homer Ivy to testify about their conversation, claiming it violated the Priest-Penitent Privilege under M.R.E. 505. However, this argument was previously dismissed, as Ivy was not a pastor, and no objection was made during the second trial regarding his testimony about forgiveness inquiries. The court cited precedent indicating that failing to object at trial waives the right to challenge the matter on appeal.
Furthermore, Banks contends that the admission of Ivy's testimony violated his Sixth Amendment right to counsel, alleging that Ivy's presence was intended to elicit a confession rather than to provide spiritual support. However, Banks did not provide any evidence or legal authority to substantiate this claim, rendering it meritless.
Regarding testimony from Tony Abshire, Banks' employer, Abshire described Banks' poor money management, noting that Banks became irritable when he ran out of money. The day before the murder, they had an argument over a $60 deduction from Banks' paycheck, and Banks did not report to work the day after the murder. Although Banks acknowledged the relevance of Abshire's testimony, he argued it should be excluded under M.R.E. 403 due to potential unfair prejudice. The court highlighted that while evidence can be excluded for unfair prejudice, Banks failed to demonstrate that the probative value of Abshire's testimony was substantially outweighed by such prejudice, affirming the trial court's decision.
Lastly, former cellmates Bobby Wofford and Willie Walker testified regarding statements made by Banks related to the murder. Banks' counsel did not object to their testimony until after it concluded and several other witnesses had testified, rendering the objection procedurally barred. The trial court correctly overruled this untimely objection, and the admissibility of the hearsay statements was upheld.
Banks contends that the testimonies of Wofford and Walker regarding his statements about Ware's murder are inadmissible hearsay. However, under M.R.E. 801(d)(2), these statements are not considered hearsay since they are Banks' own statements. Additionally, Banks argues that the testimonies should have been excluded due to the State's failure to disclose these witnesses before his first trial. The record shows that both witnesses came forward shortly before the second trial, leading to the conclusion that this claim lacks merit.
Regarding the District Attorney calling Banks a "predator" during closing arguments, Banks asserts this was an attempt to vilify him, resulting in unfair prejudice. Although prosecutors have latitude in arguments, they must not use highly prejudicial tactics. The State counters that Banks did not object to the comment during the trial and that the reference was isolated. Without a contemporaneous objection, this issue is deemed waived. The court finds the comment permissible within the bounds of closing arguments.
Finally, concerning the District Attorney's reference to a "bologna sandwich," Banks claims this remark, highlighting inconsistencies in his statements about whether he ate in the victim’s home, prejudiced him. However, there was no objection to this remark, and the court previously ruled that the unfairness stemmed from the destruction of evidence related to the sandwich, not from the comment itself. Thus, Banks’ arguments regarding both the "predator" comment and the "bologna sandwich" reference are deemed procedurally barred or lacking merit.
The District Attorney highlighted inconsistencies in Banks' initial police statement, which were relevant to his credibility. Banks did not raise any objections related to Miranda rights or the venue, rendering his objection meritless. In evaluating Banks' motion for judgment notwithstanding the verdict (J.N.O.V.) or a new trial, the court emphasized that it would only overturn the jury's decision if it were convinced of an abuse of discretion by the circuit court. The court noted that the jury is responsible for resolving conflicting testimonies, with no specific formula governing their determinations.
Banks challenged the weight of the evidence by presenting three arguments: (1) three witnesses testified he could not have been at the crime scene at the time of the victim's death, while one claimed he was there; (2) there were no fingerprints or hair linking him to the crime scene; and (3) the circumstantial nature of the evidence meant the State failed to exclude all reasonable hypotheses of his innocence. However, the court found that the State provided sufficient evidence for conviction, including Banks' suspicious behavior after leaving a card game, his prior relationship with the victim, and inconsistencies in his statements to police and inmates.
Despite conflicting evidence, the court upheld that it is the jury's duty to evaluate and resolve such conflicts. Consequently, it affirmed the trial court's decision to deny Banks' request for a J.N.O.V. or new trial. The judgment of the Clay County Circuit Court, which sentenced Banks to life imprisonment for capital murder without the possibility of parole or probation, was affirmed.
