Banks v. State

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.

In the
Supreme Court of Georgia
No. S26A0144
Jonathan Banks
v.
The State

On appeal from the Superior Court of Fulton County
No. 16SC143159

Decided: June 16, 2026

ELLINGTON, Justice.
A Fulton County jury found appellant Jonathan Banks, as
well as his co-defendants James Calhoun and James Sims
(together, “the defendants”), guilty of malice murder and other
crimes in connection with the shooting death of Pamela Williams
and the burglary of her home.1 Banks contends that the evidence

1 The crimes occurred on November 30, 2013. On April 12, 2016, Banks

was indicted along with his co-defendants, Calhoun and Sims, by a Fulton
County grand jury for malice murder (Count 1); felony murder predicated on
aggravated assault (Counts 2); felony murder predicated on burglary (Count
3); aggravated assault (Count 5); burglary in the first degree of Williams’s
home (Count 6); and possession of a firearm during the commission of a felony
(Count 9). Banks was charged individually with felony murder predicated on
possession of a firearm by a convicted felon (Count 4) and possession of a
firearm by a convicted felon (Count 10). Sims was charged individually with
burglary in the first degree of the home of Deborah Huddleston (Count 8) and
Calhoun was charged individually with burglary in the first degree of the home
of Corey Robinson (Count 7). The court severed Counts 7 and 8, and those
charges were not presented to the jury.
was insufficient to support the jury’s verdicts. He also contends
that the trial court abused its discretion in admitting certain
evidence, in denying certain motions for a mistrial, in denying
motions to strike the jury panel and to sever the defendants’
trials, and in sentencing Banks. Finally, he argues that he
received constitutionally ineffective assistance of counsel. For the
reasons explained below, these claims of error fail.
In Sims v. State, ___ Ga. ___, S26A0143, slip op. at 2-8 (Ga.
June 2, 2026), wherein we affirmed the convictions of one of

After a joint jury trial that began on September 27, 2016, Banks was
found guilty on all the charges against him. (The jury also returned guilty
verdicts against Calhoun and Sims, both of whom filed separate appeals. See
Sims v. State, ___Ga. ___, S26A0143 (June 2, 2026); Calhoun v. State, ___Ga.
___, S26A0145 (June __, 2026)). The trial court sentenced Banks on December
15, 2016, to life in prison without the possibility of parole for malice murder
(Count 1); 20 years in prison, consecutive to Count 1, for burglary (Count 6);
five years in prison, consecutive to Count 6, for possession of a firearm during
the commission of a felony (Count 9); and five years in prison, consecutive to
Count 9, for possession of a firearm by a convicted felon (Count 10). The
remaining counts (Counts 2 through 5) were vacated by operation of law or
merged for sentencing purposes.
On December 20, 2016, Banks timely filed a motion for new trial, which
new counsel amended on December 18, 2020. After a hearing, the trial court
denied the motion on July 27, 2023. On August 1, 2023, Banks timely filed a
notice of appeal. On September 3, 2025, his appeal was docketed to the term
of this Court beginning in December 2025, and the case was submitted for a
decision on the briefs.
We note the almost seven-year delay in resolving Banks’s motion for
new trial and another two-year delay for the appeal to be docketed in this
Court. The trial court apparently had not ruled on Banks’s first new trial
motion, filed in 2016, when Banks amended that motion in 2020. We “reiterate
that it is the duty of all those involved in the criminal justice system, including
trial courts and prosecutors as well as defense counsel and defendants, to
ensure that the appropriate post-conviction motions are filed, litigated, and
decided without unnecessary delay.” Owens v. State, 303 Ga. 254, 258 (2018)
(quotation marks omitted).

2
Banks’s co-defendants, Sims, we set forth the facts as follows:
Viewed in the light most favorable to the
jury’s verdicts, the trial transcript shows the
following. On the evening of November 30, 2013, the
defendants met in front of Sims’s house in the
Amhurst subdivision in Fulton County. The
defendants’ movements in and through the
neighborhood that evening were witnessed by Jerry
Link, the subdivision’s security officer. At dusk, the
defendants walked the short distance from Sims’s
house to Williams’s house along a “cut,” a makeshift
footpath through neighboring yards in the Amhurst
subdivision. At this point, Link lost sight of the
defendants. Williams, who was home alone, called
911 at 8:07 p.m. to report suspicious activity outside
her home. While she was on the phone with the 911
operator and his supervisor, she reported hearing
people ringing her doorbell repeatedly, her dog
barking, and then people entering her home.
Williams hid in the closet of her master bedroom,
crouching low and whispering to the 911 operator as
the defendants searched her home for valuables.
Then the 911 operator heard Williams scream.
Shortly thereafter, the telephone connection was
lost. Williams screamed because Banks had
discovered her hiding in the closet. Banks pressed
his gun to Williams’s head and shot her.

Although Williams’s alarm system was
armed, it was not triggered when the defendants
entered her home because the patio window through
which they entered did not have an alarm sensor.

3
Instead, the alarm was triggered at 8:20 p.m.,
shortly after the police arrived and entered the
house. Officer Michael Guin arrived at Williams’s
home at 8:14 p.m. and waited for backup to arrive.
When Corporal Willis Reed arrived, they entered the
home and found Williams breathing but
unconscious, slumped to the floor in her bedroom
closet with a gunshot wound to the head. Guin
noticed that Williams had been hiding in a smaller
“closet within the closet” and that her phone had
fallen between her knees. Paramedics transported
Williams to Grady Hospital. She died there on
December 2, 2013. The cause of death was a single,
contact gunshot wound to the head. The medical
examiner testified that Williams likely would have
been sitting on the floor, looking up at Banks, when
he pressed the gun’s muzzle to her forehead and shot
her.

After Banks shot Williams, he and the others
fled from the house on foot and, shortly thereafter,
sped out of the neighborhood in their cars. Banks hid
at the home of Sims’s cousins, Cassandra and Joseph
Hockaday. According to the Hockadays, who gave
statements to the police and testified at trial, Banks
admitted to them that he, Calhoun, and Sims had
broken into Williams’s home. Banks confessed that,
when he discovered Williams in her closet, he
“accidentally” shot her. Banks also said he hid the
murder weapon “somewhere around the
[Hockadays’] house” but, later, he and Calhoun
moved it.

4
In the following days, Banks called his mother
several times. Banks’s mother asked him whether he
had been involved in the shooting, and Banks
admitted that he “was back there.” After the
shooting, Banks told his father that “me and my
crew f***** up.” Banks’s father reported this
statement to an investigator. When Banks’s father
asked Banks whether he had shot and killed
someone, Banks responded “I don’t know.” Banks
also asked his parents for money so that he could
“get out of town.” Banks’s father gave the police the
street names of five people in his son’s “crew.”
Shortly thereafter, the police obtained warrants for
Banks, Calhoun and Sims, and they were arrested
in mid-December of 2013.

Link, the subdivision’s security officer,
testified that, during the evening of November 30, as
he patrolled the neighborhood in his car, he saw a
group of young men, including Calhoun, Banks, and
Sims, standing in front of Sims’s house. Sims’s and
Calhoun’s houses are near each other on the same
street, and Banks was staying with Sims. Link saw
Calhoun, Banks, and Sims enter a silver-gray car
with two other people at around 7:40 p.m. He
watched the car leave but did not follow it. About ten
minutes later, while Link was patrolling the
subdivision, he saw the same silver-gray car parked
on the side of the road near Williams’s house. Link
testified that he saw the car’s interior lights turn on
as several people exited the car. Then the car sped
away. Given that the neighborhood had experienced

5
“[w]ell over 150” burglaries, Link was suspicious of
what he was seeing. He began scanning the area and
saw Banks standing near a retention pond by
Williams’s house. He also spotted a group of young
men, including Calhoun and Sims, standing behind
her house.

Believing that the young men were returning
to either Sims’s or Calhoun’s house by way of the
path through the woods, Link drove back to Sims’s
home. When he got there, he did not see the men,
but he saw a red Pontiac and a blue Chevy parked
in front of Calhoun’s house. Link had seen the
defendants in those cars earlier in the day. He
testified that he had recorded the tag numbers of
those cars as well as the tag numbers for the silver-
gray car. After a few minutes, Link returned to
Williams’s street to see if he could find the young
men. As he passed by the home of Eddie
Muhammad, he spotted a group of young men,
including Calhoun, Banks, and Sims, running
through the neighborhood toward the path that led
back to their homes. Then, at 8:22 pm, Link saw the
red and blue cars that had been parked in front of
Calhoun’s and Sims’s houses speed out of the
subdivision. Later that evening, Link shared this
information with the police.

The following day, Link discovered a jewelry
box lying on the ground along the path he had seen
Calhoun, Banks, and Sims use to flee after the
shooting. Believing that the box may have been
stolen from Williams, he called the police to collect

6
it. In addition to the jewelry box, the police collected
a ring box, a black hooded sweatshirt, and a black
skull cap along the path through the woods near
Williams’s home. Link testified that, also on the day
following the shooting, he saw Sims’s mother
cleaning out the garage and disposing of clothing,
including an orange jacket matching one he had seen
Sims wearing on the night of the shooting. Link also
saw Calhoun “roaming around[,] looking at the
ground” in the area where Link had discovered the
jewelry box. Link testified that much of what he had
seen concerning the defendants’ movements from
the night of the shooting had been recorded on his
car’s dash camera and that he turned those
recordings over to the police. Several of those
recordings were admitted in evidence and played for
the jury.

Williams’s immediate neighbors also testified
concerning events on the night of the shooting. Louis
Lindo testified that, as he was standing at the end of
his driveway, he saw a group of young men walking
toward Williams’s house. Muhammad testified that
his dogs were barking that evening like someone
was walking by his house. Joshua Williams, who
lived next door to Williams, saw a group of five
young men run from behind her house along the cut
between their houses as he was getting clothes out
of the trunk of his car. Yvens Resilard, whose home
was located between Williams’s and Sim’s homes,
testified that around 8:00 p.m., he heard his dogs
barking excessively, and when he went downstairs

7
to check on them, he noticed that his motion sensor
lights were on. Derrick McKnight, who was visiting
his sister, testified that he spotted a group of five
young men lurking outside his sister’s home.
McKnight’s sister’s home was also located between
Williams’s and Sims’s homes. When McKnight
turned on the outside floodlights, he saw five young
men wearing dark clothing. One wore a skull cap.
McKnight observed the men “scatter” and try to
“hide.” The men then all ran off together in the same
direction.

The State also admitted evidence of prior acts
involving Calhoun and Sims. Marcus Greer, who
was given immunity from prosecution in exchange
for his cooperation, testified that he, Calhoun, Sims,
and two others broke into Melissa Burke’s home on
January 13, 2013. Burke had been home alone when
she heard the doorbell ring. From her upstairs
window, she saw two young men at her front door.
When they continued to ring her doorbell, Burke
called 911. As she did so, the young men climbed
through a second-floor window on the back of her
home. They began searching for things to steal.
Burke testified that she hid in the closet, but one of
the young men found her. She saw the closet door
swing open, heard a gunshot, and realized that she
had been shot. The shooter kept firing until his gun
ran out of ammunition. Burke testified that someone
said: “Man, she’s dead. Let’s just get out of here.” As
the young men left her home, they triggered her
alarm system. The alarm system did not go off when

8
they entered the home because they had entered
through a window that did not have an alarm sensor.
Burke identified Calhoun at trial as the man who
shot her.

Monica Salinas, who lived in the Cooks
Landing subdivision in Fulton County, testified that
on September 18, 2013, she heard a doorbell ring
and saw two young men standing outside her front
door. When she did not answer the door, they rang
her doorbell “20, 15 times consistently, just
constantly ringing the doorbell.” Moments later, her
dogs started barking in the back yard. She called
911, and while she was on the phone, one of the men
threw a rock through her window, shattering the
glass. When the men spotted Salinas in the upstairs
window, one threw a rock at her and then fled.
Shortly thereafter, the two men were apprehended
by the police. Salinas and a sanitation worker who
saw the men fleeing from Salinas’s home identified
one of them as Calhoun.

On October 30, 2013, Corey Robinson’s home
in the Amhurst subdivision was burglarized. The
burglars stole laptop computers, watches, a
television, and a jewelry box. The police recovered a
palm print from the home and later matched it to
Calhoun’s palm print.

1. Banks contends that the evidence was insufficient to

9
support his convictions as a matter of constitutional due process.2
In evaluating Banks’s challenge to the sufficiency of the evidence,
“we view the evidence presented at trial in the light most
favorable to the verdicts and ask whether any rational trier of fact
could have found the defendant guilty beyond a reasonable doubt
of the crimes of which he was convicted.” Jackson v. State, 311
Ga. 626, 629 (2021) (quotation marks omitted). “This Court does
not reweigh evidence or resolve conflicts in testimony; instead,
evidence is reviewed in a light most favorable to the verdict, with
deference to the jury’s assessment of the weight and credibility of
the evidence.” Id. at 630 (quotation marks omitted).
(a) So viewed, the evidence was sufficient to support the
jury’s finding that Banks committed malice murder. A person is
guilty of malice murder if “he unlawfully and with malice
aforethought, either express or implied, causes the death of
another human being.” OCGA § 16-5-1(a). See also Welch v. State,
306 Ga. 470, 473 (2019). The Hockadays testified that Banks told
them that he shot Williams during the burglary, though he
claimed the shooting was accidental. Banks also told his father
that he and his “crew” had “f***ed up.” With respect to Banks’s
criminal intent, the evidence supports the jury’s conclusion that
he intentionally killed Williams. The jury could infer from the

2 Banks also argues that the evidence was wholly circumstantial and
did not exclude every other reasonable hypothesis save that of his own guilt,
as required by OCGA § 24-14-6. However, the evidence in this case included
direct as well as circumstantial evidence. Specifically, Banks’s admission as
well as witness testimony about that admission constituted direct evidence.
See Green v. State, 322 Ga. 617, 621 (2025). Therefore, we need not evaluate
whether the facts proved at trial were sufficient to sustain a conviction under
OCGA § 24-14-6. See Montgomery v. State, 323 Ga. 188, 191 (2025) (“Because
the State presented direct evidence of [the appellant’s] guilt, OCGA § 24-14-6
does not apply[.]”)

10
medical examiner’s expert testimony concerning William’s
contact gunshot wound that Banks had deliberately pressed the
gun to her head and executed her after he discovered her crouched
down, hiding in the closet.
Further, based on the evidence presented, the jury could
also infer that the burglary crew’s scheme was to verify that a
home was empty before entering it by repeatedly ringing the
doorbell. They would then enter the home through windows
without alarm sensors. And they carried firearms because, if they
came upon a homeowner, they would not leave the homeowner
alive to identify them. In fact, Calhoun, a member of the burglary
crew, had similarly shot Burke multiple times and left her for
dead after the crew discovered her hiding in her closet. This
evidence was constitutionally sufficient to support Banks’s
conviction for malice murder. See Welch, 306 Ga. at 471–73
(concluding that the evidence, which included forensic evidence
and the defendant’s admissions, was sufficient to convict the
defendant of a malice murder he committed during a burglary).
(b) The same evidence set forth above also supports
Banks’s convictions for burglary, OCGA § 16-7-1(b), 3 possession
of a firearm during the commission of a felony, OCGA § 16-11-
106(b), 4 and possession of a firearm by a convicted felon, OCGA §

3 OCGA § 16-7-1(b) provides, in pertinent part:

A person commits the offense of burglary in the first degree
when, without authority and with the intent to commit a felony
or theft therein, he or she enters or remains within an occupied,
unoccupied, or vacant dwelling house of another or any
building, vehicle, railroad car, watercraft, aircraft, or other
such structure designed for use as the dwelling of another.
4 OCGA § 16-11-106(b) provides, in pertinent part: “Any person who

shall have on or within arm’s reach of his or her person a firearm or a knife

11
16-11-131(b). 5 Specifically, the evidence presented at trial—
including Link’s testimony, Greer’s testimony about the robbing
crew’s activities, and Banks’s admissions to the Hockadays about
participating in the crimes—supports the conclusion that Banks,
a convicted felon,6 entered Williams’s home without authority for
the purpose of committing theft and that he carried a firearm with
him, which he used to kill Williams. See Blackshear v. State, 309
Ga. 479, 484 (2022) (holding that the evidence was sufficient to
support the defendant’s burglary conviction where it showed that
the defendant entered the victim’s home without authority and
for the purpose of committing a theft); Hall v. State 308 Ga. 475,
478–79 (2020) (holding that the evidence was sufficient to support
the defendant’s conviction for possession of a firearm during the
commission of a felony and possession of a firearm by a convicted
felon).
2. Banks contends that the trial court abused its discretion
in denying a motion to strike the jury after a potential juror made
prejudicial statements to members of the jury pool, instead of
striking only the juror who made the statements. The record
shows that Jury Panelist 49 (later selected as Juror 8) made a
comment to Panelist 48 that she thought “the defendants are
guilty.” Panelist 48, who was not selected for the jury, brought
the matter to the trial court’s attention after the jury had been

having a blade of three or more inches in length during the commission of, or
the attempt to commit” any of the listed offenses, including “(1) Any crime
against or involving the person of another; [and] (2) The unlawful entry into a
building or vehicle[,]” “and which crime is a felony, commits a felony.”
5 OCGA § 16-11-131(b) provides, in pertinent part: “Any person … who

has been convicted of a felony by a court of this state … and who receives,
possesses, or transports any firearm commits a felony[.]”
6 Banks testified that he pled guilty to criminal attempt to commit

burglary in 2007 and, in 2011, to burglary and theft by taking.

12
selected but before they were sworn and impaneled. Counsel for
all three defendants objected and asked for the entire jury panel
to be stricken as it was likely tainted by these comments. The
panel of remaining potential jurors, however, had already been
dismissed. Panelist 48 and Juror 8 were brought back into the
courtroom for further voir dire concerning the circumstances
surrounding the comments, Panelist 48 testified that she did not
believe that anyone else overheard the comments, and Juror 8
stated that she did not recall expressing that opinion to anyone
else. After hearing their testimony, the trial court ruled that the
appropriate remedy was to strike Juror 8 from the petit jury, and
she was excused from service. Banks objected and asked the court
to strike the entire jury and to restart the jury selection process.
Banks contends the trial court’s ruling constituted reversible
error.
We resolved this claim in Sims, slip op. at 12-14, concluding
that the record supported the trial court’s finding that the
comment was confined to two people who did not participate as
jurors on the defendants’ petit jury and that there is no evidence
that any seated juror could have heard the comment and been
prejudiced by it. Banks has not shown that he was denied his
right to a fair trial when the court denied his request to dismiss
the jury panel and start jury selection anew. Consequently, the
trial court did not abuse its discretion denying Banks’s motion.
See id.
3. Banks contends the trial court abused its discretion in
denying his motion to sever the defendants’ trials. We considered
whether the defendants’ trials should have been severed in Sims,
slip op. at 19-21, holding that the record showed that the trial
court did not abuse its discretion in denying the defendants’
motions to sever and that the record clearly supported the trial

13
court’s ruling. In this case, Banks makes arguments similar to
those raised by Sims, complaining generally about antagonistic
defenses and the admission of prior acts evidence. In Sims, we
concluded that the primary evidence against the three co-
defendants came from the same sources: Link’s testimony
concerning his observations on the night of the shooting and
Banks’s admissions to the Hockadays. Further, the jury was
instructed on the law concerning mere presence, mere
association, and parties to a crime, and the defendants’ defenses
were not antagonistic to each other. All three denied being
present and did not shift the blame to each other. And, like Sims,
Banks failed to carry his burden on appeal of showing that he was
clearly prejudiced by a joint trial. Thus, for the same reasons that
we rejected this claim in Sims, we reject it with respect to Banks.
See id.
4. Banks contends that the trial court abused its discretion
in admitting in evidence a life-size replica of Williams’s bedroom
closet for several reasons, including that it violated his Sixth
Amendment right under the United States Constitution to
confront a witness against him because the replica temporarily
blocked his view of the witness testifying about the replica. He
also argues that the replica was not relevant to any issue at trial
but, even if the replica was relevant, its probative value was
“substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” See OCGA § 24-4-403
(“Rule 403”). He further contends that the replica was inaccurate,
inherently prejudicial, and likely improperly impacted the
outcome of the trial. Consequently, he argues that the trial court
abused its discretion in allowing the State to use the
demonstrative evidence. We resolved all but one of these

14
arguments in Sims, slip op. at 16-18, concluding that, considering
the record as a whole, the trial court did not abuse its discretion
in admitting the evidence because the replica was accurate and
relevant and its probative value was not outweighed by any Rule
403 considerations. Sims, however, did not argue that the closet
replica caused a denial of his Sixth Amendment right to confront
and cross-examine the witness against him by blocking his view
of a State’s witness testifying on direct examination. We consider
that contention now.
The Sixth Amendment’s Confrontation Clause provides
that “[i]n all criminal prosecutions, the accused shall enjoy the
right … to be confronted with the witnesses against him.” US
Const. Amend. VI.
The central concern of the Confrontation Clause is
to ensure the reliability of the evidence against a
criminal defendant by subjecting it to rigorous
testing in the context of an adversary proceeding
before the trier of fact. The word “confront,” after all,
also means a clashing of forces or ideas, thus
carrying with it the notion of adversariness.

Maryland v. Craig, 497 U.S. 836, 845 (1990). The right to confront
witnesses under the Confrontation Clause “guarantees the
defendant a face-to-face meeting with witnesses appearing before
the trier of fact.” See Coy v. Iowa, 487 US 1012, 1015-20 (1988)
(citation omitted). See also Crawford v. Washington, 541 US 36,
43–50 (2004) (discussing generally the common law tradition in
criminal trials “of live testimony in court subject to adversarial
testing”). In Craig, the Court explained that face-to-face
confrontation enhances the accuracy of factfinding by reducing
the risk that a witness will wrongfully implicate an innocent
person. It also serves a strong symbolic purpose by requiring

15
adverse witnesses at trial to testify in the accused’s presence. 497
U.S. at 846–47. However, the face-to-face requirement is not “the
sine qua non of the confrontation right[.]” Craig, at 847 (citation
omitted). “The Confrontation Clause is generally satisfied when
the defense is given a full and fair opportunity to probe and
expose testimonial infirmities such as forgetfulness, confusion, or
evasion through cross-examination, thereby calling to the
attention of the factfinder the reasons for giving scant weight to
the witness’ testimony.” Id. (cleaned up).
In this case, the trial transcript supports Banks’s
contention that the closet replica blocked Banks’s view of Officer
Guin as he testified from the witness stand on direct examination.
Assuming without deciding that the placement of the closet
replica violated Banks’s rights under the Confrontation Clause to
confront the witness “face to face,” the question remains whether,
under the circumstances here, any such violation requires
reversal. For the following reasons, we conclude that it does not.
Although an admission of evidence in violation of the
Confrontation Clause is error of constitutional
magnitude, it can be harmless error if the State can
prove beyond a reasonable doubt that the error did
not contribute to the verdict, such as when the
evidence at issue is cumulative of other properly-
admitted evidence or when the evidence against the
defendant is overwhelming.

McCord v. State, 305 Ga. 318, 321 (2019) (quotation marks
omitted).
The circumstances of this case are unusual because it is
clear from the record that the testifying witness, Officer Guin,
was not obscured from Banks’s view during the entirety of his

16
testimony. The officer was visible to the defendants during cross-
examination, as the replica had been disassembled and removed
from the courtroom prior to the officer being questioned by each
of the defendants. Counsel for each of the defendants examined
Officer Guin, and he testified, in addition to other matters, about
what he observed when he found Williams inside her bedroom
closet. Having reviewed that testimony from the record, we
conclude that the State met its burden of showing beyond a
reasonable doubt that this violation made no difference to the
verdict because defense counsel was able to move around the
replica and observe the witness. And although Banks could not
see the witness during direct examination, he could still hear the
witness testifying such that he could still confer with counsel
about the subject matter of the direct examination, if he desired.
Moreover, when Banks cross-examined the officer, the replica had
been removed. Therefore, the record shows beyond a reasonable
doubt that any violation of Banks’s Confrontation Clause right to
see Officer Guin as he testified on direct examination did not
contribute to the verdict and, therefore, constituted harmless
error. Id. at 324.
5. Banks contends that the trial court abused its discretion
in not declaring a mistrial with respect to the State’s use of the
closet replica because it inhibited defense counsel from hearing
the evidence, moving around the courtroom, observing and
making eye contact with the jurors, and confronting and
examining the witnesses. Banks, however, did not move for a
mistrial on the grounds he now alleges in his appellate brief.
Instead, his counsel moved for a mistrial on the basis that, while
defense counsel had been free to move about the courtroom during
the use of the closet replica, Banks himself was required to
remain seated and was unable “to see” the testimony. Counsel
argued that requiring Banks to remain seated while counsel was

17
free to move around the replica could have given the jurors the
impression that Banks and the other defendants were in custody.
Because Banks did not make a contemporaneous motion for a
mistrial on the ground he now raises at the time he became aware
of the matter giving rise to this claim of alleged error, he has
waived review of this claim on appeal. See, e.g., Jones v. State,
317 Ga. 466, 472 (2023) (“In order to preserve an objection for
ordinary appellate review, the specific ground of the objection
must be made at the time the challenged evidence is offered.”
(cleaned up)); Hightower v. State, 287 Ga. 586, 590 n.4 (2010)
(explaining that, although appellant preserved his claim of error
on appeal as to the basis of his motion for mistrial, he raised no
objection regarding a different issue and that issue is therefore
not preserved for appeal).
6. Banks contends that the trial court abused its discretion
in denying a mistrial “because a witness continued to testify
about criminal acts committed by someone driving a red car, that
was not identified but attempted to link these incidents to
Defendant Banks as he was reported to be driving a red car
during this incident.”
With respect to the red and blue cars that Link observed in
the neighborhood on the day of the crimes, he testified that he
“called Fulton County to have the tags run because, again, I had
reports on a vehicle that matched that from other residence[s]
that were involved.” Banks interrupted Link’s testimony and
moved for a mistrial on the ground that Link “brought out yet
more incidents that are allegedly involving the red [car] and blue
car[, i.e., specifically incidents of prior bad acts] … which
impermissibly place[d] his character in issue because [Banks] is
supposedly the driver of the red car.” Outside the presence of the
jury, the State explained that the other incidents were not

18
connected to Banks, and the State did not expect Link to testify
about the other incidents involving those vehicles. The court
denied the motion and, before the jury was called back into the
courtroom, the prosecutor instructed Link that he was “not to talk
about other crimes for which the red [car] and the blue car might
be associated with that you know about.”
The trial court did not abuse its discretion in denying this
motion. See Thomas v. State, 311 Ga. 573, 576 (2021) (“A trial
court generally has broad discretion in deciding whether to grant
a mistrial, and great deference is afforded to a court’s
determination that a mistrial was not necessary.” (quotation
marks omitted)). Banks’s objection cut Link’s testimony short,
and he did not discuss any specific prior criminal incidents
involving the two cars. Even assuming there was an implication
concerning Banks’s involvement in prior crimes, it was a brief and
passing reference. Cf. Richardson v. State, 308 Ga. 70, 71 (2020)
(“[A] passing reference to a defendant’s incarceration does not
place his character in evidence.” (cleaned up)). For these reasons,
Banks has not shown that the trial court abused its discretion in
denying his motion for a mistrial.
7. Banks also contends that the trial court abused its
discretion in denying his motion for a mistrial with respect to
Link continuing “to allude to other bad acts for which” the defense
had no notice and which “negatively impacted [Banks’s]
character.” Banks’s trial attorney again moved for a mistrial the
day after Link testified that he told the police that he had seen
certain cars associated with “negative activities” in the
subdivision on the day of the shooting. The trial court denied the
motion but agreed to give curative instructions. The court drafted
a curative instruction with input from defense counsel. The court
instructed the jury: “I want you to completely disregard the

19
witness’s testimony about other negative activities. So you are to
disregard that testimony.” Thereafter, Banks did not renew his
motion for a mistrial. Consequently, this claim of error has been
waived. See Hartsfield v. State, 294 Ga. 883, 886 (2014)
(concluding appellate review was waived when a renewed motion
for mistrial was not made after the trial court gave a curative
instruction).
8. Banks argues that the trial court should have granted a
mistrial when Banks’s mother, Sheryl Collins, made a reference
to Banks being incarcerated. On direct examination, Collins
testified that she had a limited relationship with Banks. When
the prosecutor asked why, she responded, “He’s incarcerated.”
Banks, along with his co-defendants, moved for a mistrial. The
trial court denied the motion and told the jury: “I’m going to ask
you to disregard that last response. It was non-responsive to the
question.” Banks did not renew his motion for a mistrial.
Consequently, this claim of error has not been preserved for
appellate review. See Hartsfield, 284 Ga. at 886.
9. Banks contends that the trial court abused its discretion
in denying his motion for a mistrial or for curative instructions
following emotional outbursts from the courtroom observers.
During one of the trial days, there were several emotional
outbursts from the audience. One occurred during codefendant
Calhoun’s cross-examination of Burke. Thereafter, Banks moved
for a mistrial outside the presence of the jury. Banks argued that
the outbursts were prejudicial to the jury such that a mistrial was
proper, or, in the alternative, asked that the court admonish the
audience to hold their emotions in check. The trial court chose to
admonish the audience instead of granting the motion for
mistrial. Calhoun then asked for curative instructions for the
jury, and the court gave them. No defendant thereafter objected

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or renewed their motion for a mistrial. Therefore, this claim has
not been preserved for appellate review. See Hartsfield, 294 Ga.
at 886.
10. Banks contends that the trial court erred in sentencing
him to “discretionary life without parole based on the evidence”
for the offense of malice murder in violation of the Eighth
Amendment to the United States Constitution. He contends that
the sentence was cruel, disproportionate to the crime committed,
and that it “shocks the conscience.” We disagree.
On August 12, 2016, the State filed a notice in aggravation
and intent to seek recidivist punishment under OCGA §17-10-
7(a), listing Banks’s prior felony convictions. At sentencing, the
prosecutor requested that Banks be sentenced to life without the
possibility of parole for murder. She informed the court the
sentence was not mandatory and that the court had the discretion
to sentence him to life with or without the possibility of parole.
The court heard argument from counsel and heard comments
from members of the community in support of both Banks and the
victim, and Banks made a statement. Ultimately, the court
sentenced Banks to life without the possibility of parole for malice
murder, which was authorized under OCGA § 17-10-7(a) 7 and §

7 OCGA § 17-10-7(a) provides:
Except as otherwise provided in subsection (b) or (b.1) of this
Code section, any person who, after having been convicted of a
felony offense in this state or having been convicted under the
laws of any other state or of the United States of a crime which
if committed within this state would be a felony and sentenced
to confinement in a penal institution, commits a felony
punishable by confinement in a penal institution shall be
sentenced to undergo the longest period of time prescribed for
the punishment of the subsequent offense of which he or she

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16-5-1(e)(1). 8
Because Banks’s sentence fell within the statutory limits
enacted by the legislature for malice murder, it does not violate
the Eighth Amendment’s prohibition against cruel and unusual
punishments 9 unless Banks can show that the sentence “shocks
the conscience” or is grossly disproportionate to the offense
committed. As we have explained, “[l]egislative enactments
constitute the clearest and most objective evidence of how
contemporary society views a particular punishment. Legislative
discretion must be deferred to unless, under the circumstances,
the sentence shocks the conscience.” Graham v. State, 266 Ga.
543, 544 (1996) (cleaned up). Banks has not presented any
evidence or argument showing that his sentence “shocks the
conscience” or was grossly disproportionate to sentences imposed
in similar cases in Georgia or other jurisdictions, nor do we
discern any such evidence in the record before us. Instead, the
evidence in this case demonstrated that Banks, a repeat offender
and member of a burglary crew, executed Williams by pressing a
gun to her forehead and pulling the trigger after finding her
hiding in her closet during the burglary of her home. Under these
circumstances, Banks’s sentence does not “shock the conscience”
and therefore fails to raise an inference of gross

stands convicted, provided that, unless otherwise provided by
law, the trial judge may, in his or her discretion, probate or
suspend the maximum sentence prescribed for the offense.
8 OCGA § 16-5-1(e)(1) provides: “A person convicted of the offense of

murder shall be punished by death, by imprisonment for life without parole, or
by imprisonment for life.”
9 “The Eighth Amendment of the United States Constitution bans

‘cruel and unusual punishments,’ including those that are grossly
disproportionate to the crime committed.” Sillah v. State, 315 Ga. 741, 754
(2023).

22
disproportionality. See Sellers v. State, 323 Ga. 237, 246 (2026)
(explaining that appellant’s sentence of life without parole for
malice murder was not grossly disproportionate where evidence
showed he broke into the victim’s motel room, beat him, and shot
him in the back when he tried to flee) For these reasons, we affirm
Banks’s sentence.
11. Banks contends that his counsel provided
constitutionally ineffective assistance when, without objection, he
allowed witness Greer to read into the record that he was given
immunity for his “truthful testimony,” thereby impermissibly
bolstering his testimony.
This ground for relief was not preserved for appellate
review by Banks.10 After trial, Banks retained new counsel to
represent him and to file a motion for new trial. New counsel did
not raise this claim of ineffective assistance in Banks’s amended
motion for new trial, nor did he argue it at the motion for new
trial hearing. The trial court did not address any ineffective
assistance claims in the order denying Banks’ motion for new
trial, as no such claims had been placed before the trial court for
decision. “To preserve the issue of ineffective assistance of
previous counsel, new counsel must raise the issue at the earliest
practicable opportunity of post-conviction review or the issue is
waived.” McIntyre v. State, 312 Ga. 531, 536 (2021) (citation
omitted). Because Banks did not raise this claims in his motion
for new trial, the claim is not preserved for appellate review. See
id.
Judgment affirmed. All the Justices concur.

10 The claim of error was raised by co-defendant Sims in his motion for

new trial and the trial court denied this claim as to Sims only.

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