The Tennessee Supreme Court has upheld the death and prison sentences imposed on Devin Banks of Memphis for killing a friend and severely wounding a second man who was left for dead in the driveway of his home during a robbery.
Banks was convicted of premeditated murder, murder during the perpetration of a robbery, attempted first degree murder and especially aggravated robbery. He was sentenced to death for the 2002 killing of Kadhem Al-Maily and 50 years in prison for robbery and the attempted murder of Hussain Atilebawi. Both victims were immigrants from Iraq who lived and worked in Memphis.
In a unanimous opinion written by Justice William C. Koch, Jr., the court rejected issues raised by Banks in his direct appeal. Chief Justice Janice M. Holder and Justices William M. Barker (now retired), Cornelia A. Clark and Gary R. Wade concurred in the majority opinion, which reversed in part and affirmed a Court of Criminal Appeals (CCA) decision.
By law, for a defendant to receive a sentence of death, jurors must find one or more statutorily defined aggravating circumstances. In the Banks case, they found two - that the murder was committed for the purpose of avoiding arrest or prosecution and that the victim was killed while Banks played a substantial role in a first degree murder.
The CCA said the evidence did not support the jury's conclusion that Banks killed Al-Maily to avoid arrest or prosecution. The Supreme Court disagreed and concluded that the jury was correct that there were two aggravating circumstances. Both courts affirmed Banks’s convictions and sentences.
Koch wrote that the murder victim was “widely known and respected among the Iraqi community in Memphis because he had a reputation of helping persons in need.” He and Atilebawi had been acquainted in Iraq and became close friends in Memphis.
“After they moved to Memphis, both Mr. Al-Maily and Mr. Atilebawi befriended Devin Banks,” Koch wrote in the opinion. “Mr. Banks was welcome in Mr. Atilebawi’s home and he occasionally spent the night at Mr. Atilebawi’s house.”
The friendship between the Iraqi men and Banks soured because of an incident involving a former girlfriend of Banks and because Banks believed Atilebawi owed him money.
Banks asked a friend, Michael Hilliard, to obtain a handgun and assist him in killing Atilebawi. Three nights later, the men went to Atilebawi’s house, armed with a .22 caliber semi-automatic pistol provided by Hilliard. After being welcomed into Atilebawi’s home, Banks borrowed a cordless phone and went outside to call Hilliard who was waiting nearby. When Atilebawi also walked outside, Banks shot him four times, including three times after he was lying in the driveway.
Banks re-entered the house and confronted Al-Maily, who turned over $300 in cash. He ordered Al-Maily to lie face down on a bedroom floor while he and Hilliard loaded items stolen from the house into cars belonging to Atilebawi. They returned to the house, where Banks shot Al-Maily in the head. The men then fled in the stolen cars.
Atilebawi survived his wounds and was able to call for help. He told officers on the scene what had happened. Banks was arrested driving one of the stolen vehicles which contained stolen cash and merchandise.
After being advised of his Miranda rights, Banks gave two confessions. In the second confession, he admitted shooting the victims and provided details of the crime. He was convicted in 2005 and during the penalty phase was sentenced to death.
During a required proportionality review, Koch wrote that the Supreme Court concluded that the sentence of death was not arbitrarily imposed; the evidence supported the jury’s finding of statutory aggravating circumstances; the evidence supported the jury’s finding that the aggravating circumstances outweighed mitigating evidence; and the sentence was not excessive or disproportionate to the penalty imposed in similar cases.
“Mr. Banks’s sentence of death shall be carried out on December 9, 2009, unless otherwise ordered by this court or other proper authority,” Koch wrote.