Banks v. State
Annotate this Case
Download PDF
Cite as 2010 Ark. 108
SUPREME COURT OF ARKANSAS
No.
KEVIN L. BANKS,
CR 09-838
Opinion Delivered
APPELLANT,
VS.
STATE OF ARKANSAS,
APPELLEE,
March 4, 2010
APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT,
NO. CR 2008-857,
HON. CHRISTOPHER CHARLES
PIAZZA, JUDGE,
AFFIRMED.
PAUL E. DANIELSON, Associate Justice
Appellant Kevin L. Banks was convicted of one count of capital murder and four
counts of committing a terroristic act and was sentenced to concurrent terms of life
imprisonment without parole and 480 months’ imprisonment, which were enhanced by a
consecutive term of 180 months’ imprisonment for use of a firearm. He appeals from his
criminal convictions and sentence, asserting two points: (1) that the circuit court erred in
admitting items discovered during a search of a home in which he had not lived for four
months prior to the search; and (2) that the circuit court erred in admitting certain testimony
and evidence relating to a North Little Rock shooting that occurred after his incarceration.
We affirm Banks’s convictions and sentence.
Because Banks does not challenge the sufficiency of the evidence supporting his
convictions, only a brief recitation of the facts is necessary. See, e.g., Neal v. State, 375 Ark.
Cite as 2010 Ark. 108
389, 291 S.W.3d 160 (2009). Around 5:00 a.m. on December 29, 2007, Little Rock police
officers responded to a drive-by shooting that had occurred at 2715 Martin Luther King
Drive. Upon arriving at the residence, the police encountered Antoine Jones, who was
holding his girlfriend’s daughter, six-year-old Kamya Weathersby, who had been shot and
later died. Police discovered that the side of the house was riddled with bullet holes and
learned that, at the time of the shooting, Antoine; his girlfriend, LaShandra Washington; their
daughter, Aries; and LaShandra’s daughter, Jasriea; along with Kamya, were in the home.
Banks was ultimately charged with capital murder and four counts of committing a terroristic
act in connection with the shooting, as were his half-brothers, Ricky Smith and Marqus
Smith. The cases were severed, and Banks was tried and convicted on all counts.1 He now
appeals.
I. Preservation
We note, as an initial matter, the State’s contention that Banks’s arguments are not
preserved for appeal due to his failure to object at the first opportunity when the evidence at
issue was admitted. We hold that the State’s lack-of-preservation argument is without merit.
The State indicated, pretrial, its intent to use certain evidence at issue in its case against Banks
via a motion entitled “Notice of Intent to Use Section 404(B) Evidence” and, later, a
supplemental notice. Prior to the severance of the three defendants, the circuit court held a
1
We recently affirmed Ricky Smith’s convictions and sentence in Smith v. State, 2010
Ark. 75, ___ S.W.3d ___.
-2-
Cite as 2010 Ark. 108
hearing on the State’s notice, on September 11, 2008, during which all three defendants
objected to the admissibility of the ammunition found during a search of the home in which
all three had resided. In addition, an objection was made to the admissibility of evidence
relating to the North Little Rock shooting. At the conclusion of the hearing, the circuit
court ruled that the State could not discuss certain guns that were discovered during the
search, but that the ammunition evidence was relevant. In addition, the circuit court ruled
that, while there might be some question as to whether one of the defendants was in custody
at the time of the search, that was an issue that went to the weight of the evidence. The
circuit court also ruled that evidence relating to the North Little Rock shooting was
admissible.
Four days later, it was requested that the matters be severed, and on September 17,
2008, the first day of Banks’s trial, Banks noted that he needed to renew his objections to the
State’s 404(b) evidence. At that time, Banks again objected with respect to the admissibility
of the ammunition evidence found at his former residence. Again, the circuit court overruled
Banks’s objection, stating that whether Banks was incarcerated at the time of the search went
to the weight of the evidence and that its probative value would outweigh any prejudicial
effect. In addition, Banks objected to “the 404(b) introduction of anything included in the
North Little Rock incident.” Again, the circuit court overruled Banks’s objection.
Clearly, no contemporaneous objection was required where the circuit court had twice
overruled Banks’s objection to the admissibility of the evidence at issue, prior to its admission
-3-
Cite as 2010 Ark. 108
at trial. When an objection made in the form of a motion in limine has been overruled by
the circuit court, a contemporaneous objection at trial is not required. See Banks v. State,
2009 Ark. 483, ___ S.W.3d ___. Accordingly, we hold that Banks’s argument is preserved
for its review.
II. Evidence Resulting from Search
For his first point on appeal, Banks argues that the circuit court erred in admitting
certain ammunition that was seized from his former residence during a search that occurred
after he was incarcerated. He claims that the evidence was not relevant as to him, as the
evidence was found in Ricky Smith’s bedroom.
He further asserts that he had no
constructive possession of the evidence, and that, even if the evidence were relevant, it should
have been excluded because its probative value was substantially outweighed by the danger
of unfair prejudice. The State urges that Banks’s sole objection to the ammunition’s
admission was based on relevancy. It contends that the evidence was relevant in that it
demonstrated that Banks had access, through his brother, to the type of ammunition used.
Here, as well as before the circuit court, Banks claims that the ammunition taken from
his former home was not relevant and, therefore, inadmissible. Rule 401 of the Arkansas
Rules of Evidence defines relevant evidence as “evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action more probable
or less probable than it would be without the evidence.” Ark. R. Evid. 401 (2009). Arkansas
Rule of Evidence 402 further provides that “[e]vidence which is not relevant is not
-4-
Cite as 2010 Ark. 108
admissible.” Ark. R. Evid. 402 (2009). A circuit court’s ruling on relevancy will not be
disturbed absent an abuse of discretion. See Barrett v. State, 354 Ark. 187, 119 S.W.3d 485
(2003). For evidence to be relevant, it is not required that the evidence prove the entire case;
rather, all that is required is that it have any tendency to make any fact that is of consequence
to the determination of the action more or less probable. See id.
The State’s theory of its case was that Banks, along with his half-brothers, Ricky and
Marqus, was responsible for the drive-by shooting that resulted in Kamya’s death. Here,
Banks challenges the admission of ammunition that was found during a search of his former
home, in which he lived with his half-brothers and parents. The ammunition found in
Ricky’s bedroom consisted of the following: (1) one live nine-millimeter round; (2) a box for
7.62 by 39 ammunition; (3) nine live 7.62 by 39 rounds; (4) five 7.62 by 39 rounds; and (5)
seven live .40-caliber rounds. The State sought to admit the ammunition found “to show
that these Defendants had knowledge of the sorts of weapons that were used in the death of
Kamya Weathersby and had access to them.” The circuit court agreed that the evidence was
relevant and deemed it admissible over Banks’s objections.
We cannot say the circuit court abused its discretion. Testimony was presented by the
State that twelve 7.62 by 39 shell casings, twenty-two nine-millimeter, and eight .40-caliber
shell casings had been collected from the scene of the drive-by shooting, which resulted in
Kamya’s death. The same, exact types of ammunition were found at Banks’s former home,
in the bedroom of his half-brother, an alleged accomplice to the shooting. Such was relevant
-5-
Cite as 2010 Ark. 108
evidence relating to Banks’s and his alleged accomplices’ knowledge of those types of
ammunition and access thereto. The fact that the exact same types of ammunition used in
the shooting were found at the home of Banks and his alleged accomplices was relevant to
his or his accomplices’ guilt.
Nor can we say that the circuit court abused its discretion in concluding that the
evidence was more probative than prejudicial. The balancing of probative value against
prejudice, under Ark. R. Evid. 403, is a matter left to the sound discretion of the circuit
court, and the circuit court’s decision on such a matter will not be reversed absent a manifest
abuse of that discretion. See Davis v. State, 368 Ark. 401, 246 S.W.3d 862 (2007). Banks
claims that the evidence had no real probative value to him, but, instead, was probative of the
fact “that Ricky Smith was in possession of the same type of ammunition used during the
murder of KamyaWeathersby.” Indeed, it was, and, therefore, it was also probative as to
Banks, where it was alleged by the State that he or an accomplice had committed the murder
and terroristic acts. Accordingly, we affirm the circuit court’s admission of the specific
evidence at issue.
II. 404(b) Evidence
Banks next argues that the circuit court improperly admitted testimony and evidence
regarding a drive-by shooting that occurred in North Little Rock while he was incarcerated.
Specifically, he challenges the testimony admitted describing the incident and evidence
relating to it, and he challenges the testimony of Freddie Walls, who testified that Banks
-6-
Cite as 2010 Ark. 108
ordered the North Little Rock shooting while in jail. He contends that the admission of this
evidence violated Ark. R. Evid. 404(b) and further asserts that, while the evidence may have
been relevant pursuant to Ark. R. Evid. 401, it was more prejudicial than probative. The
State responds that the evidence and testimony relating to the North Little Rock shooting was
admissible under Rule 404(b) as it was evidence of Banks’s motive, intent, and plan to kill
Antoine Jones.
The testimony and evidence challenged by Banks relates to a separate drive-by
shooting that occurred in North Little Rock on May 12, 2008, subsequent to the instant
shooting.
The victims in this latter drive-by shooting were, again, Mr. Jones, Ms.
Washington, and their child, Aries. Ms. Washington testified that after arriving home and
parking their car, she exited the car and went around it to get their child. She stated that after
Mr. Jones also stepped out of the car, they heard shooting “coming [their] way.” Mr. Jones
similarly testified, and photographs of their car and the damage it sustained were admitted into
evidence.
In addition to their testimony, the State presented testimony from police officers
regarding the North Little Rock shooting, as well as two witnesses. Janice Brock testified that
while walking her dog nearby, she heard shots, reached down to pick up her dog, and saw
a car with no lights coming up the street. She testified that the car almost hit her dog and
later crashed into another car down the road. Rozline Jenkins testified that she heard a crash
outside her home. She stated that she ran outside and saw someone get out of a maroon car
-7-
Cite as 2010 Ark. 108
wearing dark clothing and a bandanna and carrying a “big long gun.” Officer Richard Gray
with the North Little Rock Police Department testified that a blue Buick LeSabre and a
maroon Nissan Maxima were involved in the accident. He testified that while there were no
occupants in the maroon car when he arrived, an inquiry revealed that it was registered to
Lawrence, Banks’s father, or Sonya Banks.
Detective Michael Gibbons of the North Little Rock Police Department testified that
Ms. Jenkins later identified Ricky Smith from a photo spread as the man she saw run from
the car. He further testified that DNA results from the maroon car’s airbag that had deployed
in the accident “came back to Ricky” and that the investigation revealed that both Ricky and
Marqus Smith routinely drove that car. Reuben Linder, a forensic firearms and toolmark
examiner from the Arkansas State Crime Laboratory, testified that several of the casings found
at the scene of the North Little Rock shooting and casings from the Little Rock drive-by
shooting were fired from the same firearm.
In addition to the foregoing testimony, Freddie Walls, who at the time of trial was
incarcerated in the Pulaski County Jail, testified that he and Banks had been cellmates. Walls
testified that Banks admitted to accidentally killing Kamya with Ricky and Marqus. He
testified that Banks said “he was locked up first on the charge, and [Ricky and Marqus were]
still out.” He testified that Banks told him that Banks told Ricky and Marques “that they
need to go kill the witnesses that was on the charge.” He testified that Banks said he wanted
them to kill “LaShandra,” and that he told them “that they stayed at Dixie . . . in North Little
-8-
Cite as 2010 Ark. 108
Rock” and that “they need to go over there and take care of their business.” Walls testified
that Banks said that he had gotten his information about what happened in the North Little
Rock shooting from talking to his brother on the phone and that Banks then told him that
“they were shooting and that they were shooting, and they had wrecked their vehicle.” He
said Banks told him that “they either had ran into a pole or a stop sign, and that they had
jumped out the car and took off running while they was trying, while they was trying to kill
her.”
It is clear that the foregoing testimony and evidence are evidence of another crime,
wrong, or act, which is typically inadmissible pursuant to Ark. R. Evid. 404(b), which
provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show that he acted in conformity therewith.
It may, however, be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident.
Ark. R. Evid. 404(b) (2009). For evidence to be admissible under Rule 404(b), it must be
relevant to prove the main issue independently from proving bad character. See Holman v.
State, 372 Ark. 2, 269 S.W.3d 815 (2007). Evidence admitted under Rule 404(b) is
independently relevant if it has a tendency to make the existence of any fact that is of
consequence to the determination of the action more or less probable than it would be
without the evidence.
See id.
When evidence of another crime or wrong reflects
consciousness of guilt of the commission of the crime charged, it is independently relevant
-9-
Cite as 2010 Ark. 108
and
admissible under Rule 404(b). See id. See also Henderson v. State, 322 Ark. 402, 910 S.W.2d
656 (1995).
We hold that the North Little Rock drive-by shooting reflected Banks’s consciousness
of guilt and was independently relevant. Testimony was presented by the State that Banks,
from jail, directed his half-brothers to kill “the witnesses that was on the charge,” and
testimony and evidence were presented that an attempt was in fact made to kill Mr. Jones,
Ms. Washington, and their child, by at least one of Banks’s half-brothers, who was also an
alleged accomplice to the Little Rock drive-by shooting. We have held that an attempt to
tamper with or silence witnesses to thwart prosecution for the charged offense is evidence of
consciousness of guilt and constitutes relevant evidence. See Henderson, supra. Accordingly,
the testimony and evidence relating to the North Little Rock drive-by shooting were
properly admitted under Rule 404(b).
Notwithstanding its admissibility under Rule 404(b), Banks further asserts that the
testimony and evidence relating to the North Little Rock drive-by shooting should have been
excluded as more prejudicial than probative. As already noted, the balancing of probative
value against prejudice, under Ark. R. Evid. 403, is a matter left to the sound discretion of
the circuit court, and the circuit court’s decision on such a matter will not be reversed absent
a manifest abuse of that discretion. See Davis, supra. We cannot say that the circuit court
-10-
Cite as 2010 Ark. 108
abused its discretion in concluding that the testimony and evidence were admissible pursuant
to Rule 403.
We note that neither Banks nor the State complied with Arkansas Supreme Court
Rule 4-3(i) (2009) in that both failed to “abstract, or include in the Addendum, as
appropriate, all rulings adverse to [the appellant] made by the circuit court on all objections,
motions and requests made by either party, together with such parts of the record as are
needed for an understanding of each adverse ruling.”2 (Emphasis added.) Notwithstanding
their noncompliance, the record in this case has been reviewed for all objections, motions,
and requests made by either party, which were decided adversely to Banks, and no prejudicial
error has been found.
For the foregoing reasons, we affirm Banks’s convictions and sentence.
Affirmed.
2
While the rule initially places the responsibility on the appellant, the State must “make
certain and certify that all of those objections have been abstracted, or included in the
Addendum.” Ark. Sup. Ct. R. 4-3(i) (emphasis added). While the State certified that it had
“examined the record to ensure that all rulings decided adversely to Banks” had been
abstracted and that any “rulings not included in Bank’s [sic] abstract are included in the State’s
supplemental abstract,” neither was the case.
-11-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.