Vernice Ballenger, Mississippi
Vernice Ballenger was sentenced to death in Mississippi, USA, on
January 13, 1993 for the arson and murder of her aunt, Myrtle Ellis,
75, in Leake County on July 10, 1983, during a robbery.
Supreme Court of Mississippi - Ballenger v.
Ballenger ("Ballenger") was indicted by a Leake County, Mississippi,
grand jury on September 2, 1992, for the capital murder of Myrtle
Ellis while engaged in the commission of the crime of robbery. A jury
was impaneled and Ballenger was found guilty. A separate sentencing
hearing was conducted and on January 13, 1993, Ballenger was sentenced
to death by lethal injection. It is from this conviction and sentence
that Ballenger appeals, raising twenty-four separate issues. Finding
no reversible error, we affirm both Ballenger's conviction and
sentence of death.
Statement of the Facts
to July 10, 1983, Vernice Ballenger traveled from her home in Leake
County, Mississippi, to Greenville, Mississippi, where her estranged
husband Mac Ballenger ("Mac") was living and asked him to rob her
elderly aunt, Myrtle Ellis. Mac told her he would not do it
personally, but that he knew somebody who would. That person was James
Head ("Head"). Head agreed to the robbery and in turn brought in
Ronald Ritter ("Ritter") to help.
The reason for
the robbery came about when earlier in the year Myrtle Ellis ("Ellis")
had an automobile wreck and was admitted to the hospital. At the
hospital Ellis was found to have a substantial sum of money on her
person. The accident and the fact that Ellis was carrying a large
amount of money was reported in the newspaper.
On or about July
9, 1983, Mac came from Greenville to Leake County. Head and Ritter
also came to Leake County in another vehicle. The next morning Head,
Ritter, Mac and Ballenger met at Ballenger's house. There was some
testimony that the Ballengers' two daughters also may have been at the
house. Mac testified that Ballenger agreed to give Head and Ritter
each $10,000.00 for robbing her aunt.
trips were made to Myrtle Ellis' house. On the first trip Mac,
Ballenger, Head and Ritter just drove by Ellis' house to look at it
and then returned to Ballenger's house. A short time later Ballenger
drove Head and Ritter back to Ellis' house but they were scared off
when they spotted a hunter in the woods. Again they returned to
that when they returned to Ballenger's house they told Mac what had
happened. Ritter stated Mac said they were just scared. Mac opened a
bottle of whiskey and they all sat around drinking and planned what
they should do. It was decided that another attempt would be made and
that Mac would drive Head and Ritter to Ellis' house. Ritter and Mac
both testified that when planning the robbery no one intended that
Ellis be hurt and in fact it was suggested she be left alone. However,
before the three men left on the third trip to Ellis' house Ballenger
gave them a pistol and a rifle. In his written statement to police Mac
made no mention of anybody having guns.
arrived at Ellis' house, Ritter and Head went inside. Mac stated he
stayed on the porch. Ritter asked Ellis where her money was and she
replied she did not have any. Ritter slapped her and she got mad and
said the hospital took the money and it was in the bank. At that point
Ritter stepped away from Ellis and Head started hitting her. Head
began asking her questions but she had been knocked unconscious. When
Ellis could not answer his questions, Head got mad and pulled out the
pistol. He put the gun to Ellis' head and pulled the trigger but the
gun was not loaded. Head then hit Ellis with the gun.
Both Ritter and
Mac testified that Head was a big, violent man and that he had been
drinking. They stated that when Ellis said she did not have any money
Head went crazy and started hitting her.
that Ballenger told them she had been to see Ellis after the car
accident and Ellis told her the bank had taken her money. Ballenger
did not believe her and told them that if Ellis did not have the money
sewn in her brassiere then it was probably sewn inside a chair or a
Head and Ritter
searched the house for the money but found none. Mac searched Ellis'
truck and found a doll which he believed possibly contained the money.
Mac came back inside the house and told Ritter and Head he had the
doll. Head threw Ellis across the room, kicked her and then the three
men left. Once in the van, Mac gave the doll to Head who tore it
apart. There was no money in the doll so he threw it out the window.
returned to Ballenger's house and told her what had happened. Ritter
testified that Ballenger
know what happened over there, and we told her, and she wanted to
know what did we do, how did we do it. We just pulled up in the
driveway and got out and went in. She said, "What do you mean you
just pulled up in the driveway and went in?" Said, "Somebody could
have seen the van sitting in front of the house." Said, "Where's the
woman at?" "Well, the woman's at the house. She's in the house now,
is unconscious." And, she said, "Is she alive?" and we said, "Yeah."
She said, "Well," and it started out, she was over there before in
the van and the woman would know the van, and if she seen Mac or
anybody; she would know that Vernice was tied into it, so couldn't
leave the situation like that. Said we would have to kill the woman.
suggested that Ellis' house be burned down with her in it.
Ritter, Head and
Ballenger then went back to Ellis' house. When they arrived Head was
dropped off and was supposed to start the fire. Ritter and Ballenger
drove down the road then turned around and picked up Head. There was
no smoke coming from the house so Ballenger said someone would have to
go back. Ritter volunteered. Ritter stated that he intended to get
Ellis out of the house before he burned it. When he arrived Ellis was
already lying outside. There was a pile of clothes on the floor and
Ritter threw a match on them to start a fire. The three then returned
to Ballenger's house. Subsequently, Ritter and Head returned to
Carolyn Wilcher, a justice
court judge in Leake County, Mississippi, testified that at the time
Ellis' house was burned down she worked at the Madden hospital and her
husband was a volunteer fireman who responded to the fire. Wilcher
followed the fire truck to the Ellis house to see if she could help.
When she arrived the house was
in flames. Someone found Ellis beside a shed and laid her out beside
the road away from the flames. Ellis was unconscious, her head was
swollen and she was bruised. Her clothes had been partially ripped off
and she was very dirty.
regained consciousness at the hospital in Madden and was transferred
to University Hospital in Jackson to undergo care from a neurologist.
Ellis died at University Hospital at 9:57 p.m. on July 20, 1983.
William Featherston performed the autopsy on Ellis. He stated that
although there was no skull fracture, there was evidence of injury to
the head and brain and some evidence of hemorrhage. Featherston stated
that these head injuries were not fatal.
examined Ellis' chest area. Ellis' upper four ribs on both her left
and right sides were fractured. There was a fracture of the
breastbone. The mammary artery which runs along the margin of the
breastbone had been torn. There was a large amount of blood in the
right chest cavity. "And, this blood had collapsed her right lung and
then pushed the heart and the left lung over into the left side of the
chest cavity, and that, the hemorrhage and the displacement of the
internal organs, is what produced her death." Featherston stated that
in his opinion these injuries were consistent with Ellis being struck
or kicked in the chest area. There was no evidence of any injury due
to fire or being burned.
Bobby Brown, a
member of the Carthage Police Department, was a deputy with the Leake
County Sheriff's Department in July of 1983. Brown was involved in the
investigation of the fire and Ellis' death. Brown stated that they
began looking for a light colored custom van with markings on the
side. Two or three days after the fire a van fitting that description
was located and determined to belong to Ballenger. At the time it was
located a picture was taken of the van. That picture was identified by
Brown and offered for identification by the State. The picture was put
into evidence when Mac Ballenger identified it as being of the van
owned by Ballenger in July of 1983. After taking the picture Brown
went back to try and match the tires on the van with tracks found at
Ellis' house. Brown testified that since the picture had been taken
new tires had been put on the van and the van had been repainted.
Supreme Court of Mississippi
Ballenger v. State
Vernice BALLENGER v. STATE of Mississippi.
June 22, 2000
Robert B. McDuff, Jackson, Fritz Byers, Toledo, OH,
Attorneys for Appellant.Office of the Attorney General by Marvin L.
White, Jr., Attorney for Appellee.
STATEMENT OF THE CASE
¶ 1. Vernice Ballenger (Ballenger) was convicted by
a jury in the Circuit Court of Leake County, Mississippi, on January
12, 1993, for the capital murder of Myrtle Ellis while engaged in the
commission of the crime of robbery. In a separate sentencing hearing
on January 13, 1993, Ballenger was sentenced to death by lethal
injection. On September 21, 1995, Ballenger's conviction and
sentence were affirmed by this Court on direct appeal. Ballenger v.
State, 667 So.2d 1242 (Miss.1995). The opinion was modified on
motion of the State on November 22, 1995, and Ballenger's petition for
rehearing was denied on February 8, 1996.
¶ 2. The following sequence of events then
¶ 3. The majority of Ballenger's claims are without
merit or procedurally barred as they have previously been decided on
direct appeal. However, Ballenger's claim that the trial court
failed to instruct the jury on the underlying felony of robbery has
merit; and therefore, pursuant to the authority found in Miss.Code
Ann. § 99-39-27(7)(Supp.1999), we grant the amended and supplemented
motion, vacate Ballenger's conviction of capital murder and sentence
of death by lethal injection, and remand for a new trial consistent
with this opinion.
STATEMENT OF THE FACTS
¶ 4. During July 1983, Ballenger asked Mac
Ballenger (Mac), her estranged husband, to rob her elderly aunt,
Myrtle Ellis (Ellis). Mac told her he would not do it personally,
but knew someone who would. Mac recruited James Head (Head), who
agreed to the robbery and in turn brought in Ronald Ritter (Ritter) to
help. Mac testified at trial that Ballenger agreed to give Head and
Ritter each $10,000 for robbing her aunt.
¶ 5. On July 10, 1983, Head, Ritter, Mac and
Ballenger met at Ballenger's house in Carthage, Mississippi. Mac,
Ballenger, Ritter and Head subsequently drove to Ellis's house to look
at the house and its surroundings and then returned to Ballenger's
home. A short time later, Ballenger, Ritter and Head made a second
trip to Ellis's house. Ballenger dropped Ritter and Head off at the
edge of the woods near the house. Ritter and Head were scared away
by a hunter in the woods before they could get to the house. They
returned to Ballenger's home and began drinking. It was decided that
another attempt would be made, this time with Mac driving. Ballenger
gave Ritter and Head a .22 caliber rifle and a pistol before they
¶ 6. On this trip, Ritter and Head went inside
while Mac stood in the front doorway of the house. Ritter asked
Ellis where her money was, and Ellis said that she did not have any.
Ritter slapped Ellis, and she told him that she did not have any money
because the bank or the hospital had taken it. At that point, Ritter
stepped away from Ellis, and Head started beating her.
¶ 7. Head and Ritter searched the house for the
money but found none. Mac retrieved a doll from Ellis's car thinking
that there might be money hidden in it. Head became enraged and
threw Ellis across the room, kicked her and then the three men left.
On the way back to Ballenger's house, Head ripped the doll apart.
However, he found no money in it, so he threw it out the window.
¶ 8. Upon returning to Ballenger's house, Mac,
Ritter and Head told Ballenger what happened. Ballenger became
concerned that Ellis or someone else might recognize her van.
Ballenger then suggested that Ellis's house be burned down with her in
it to ensure that Ellis could not identify her assailants.
¶ 9. Ritter, Head and Ballenger returned to Ellis's
house and dropped off Head to start the fire. Ritter and Ballenger
drove down the road, turned around and came back to pick up Head.
There was no smoke coming from the house, so Ballenger said that
another attempt should be made to start the fire. Ritter
volunteered. When Ritter returned to the house, Ellis was already
lying outside. There was a pile of clothes on the floor, and Ritter
threw a match on them to start a fire. The three then returned to
Ballenger's house. Subsequently, Ritter and Head returned to
¶ 10. A fire truck was called to Ellis's house.
Ellis was found unconscious beside a shed near her home. Her head
and face were swollen and bruised. Her clothes were torn and
disheveled. Ellis was taken to the emergency room at the hospital in
Madden and later transferred to University Hospital in Jackson.
Ellis regained consciousness, but declined to identify her assailants.
Ten days later, on July 20, 1983, Ellis died as a result of the
injuries she sustained.
DISCUSSION OF LAW
¶ 11. Ballenger's amended and supplemented motion
contains forty-seven (47) claims as a basis for post-conviction
relief. When combined however, the arguments essentially fall into
five categories: (1) trial court error; (2) prosecutorial
misconduct; (3) evidentiary insufficiency; (4) new evidence; and
(5) ineffective assistance of counsel. Because we find that
Ballenger's conviction and sentence should be vacated, we find it
necessary to address only the controlling issue.
1. FAILURE TO INSTRUCT ON THE ELEMENTS OF
¶ 12. Ballenger argues that the trial court
committed fundamental error by failing to instruct the jury on the
elements of robbery. This issue was considered and rejected on
direct appeal. Ballenger argued that the trial court erred in
refusing her proposed jury instructions D-22 and D-29. We found that
D-22 was not marked “given” or “refused” and the transcript did not
show any mention of the instruction. As a result, we found that the
issue was not properly preserved for appeal and was, therefore,
procedurally barred. Ballenger v. State, 667 So.2d at 1251-52. As
to D-29, we held that the instruction, which would have allowed the
jury to find Ballenger guilty only of robbery, was properly refused by
the trial court because robbery is not a lesser-included offense of
capital murder. Additionally, we found the trial court's refusal to
give the instruction was proper because the instruction was not
supported by the evidence. Id. at 1254-55.
¶ 13. Ballenger now argues that Hunter v. State,
684 So.2d 625 (Miss.1996) and Shaffer v. State, 740 So.2d 273
(Miss.1998), which were decided subsequent to Ballenger's direct
appeal, qualify as intervening decisions; and therefore, the
procedural bar should not be applied. Ballenger additionally argues
that the trial court prevented her from preserving the issue on appeal
because her trial counsel was told to limit the number of instructions
submitted to the Court. Her trial counsel has signed an affidavit
that this is the reason he did not pursue all of the instructions
originally filed. He further states in the affidavit that he thought
the trial court's instructions to reduce the number of guilt
instructions appeared in the record, and only during preparation of
the original brief on direct appeal did he learn that they did not
appear in the record. Finally, Ballenger argues that the failure to
instruct on the underlying felony of robbery is not only a violation
of state law, but also of federal constitutional law.
¶ 14. In response, the State argues that the issue
was decided against Ballenger on direct appeal on the basis of a
procedural bar; and therefore, the claim is barred by the doctrines
of “different state or federal legal theories,” and res judicata found
in Miss.Code Ann. § 99-39-21(2) and (3)(1994).
¶ 15. As previously stated, Ballenger's claim on
this issue was denied on direct appeal. Ballenger v. State, 667 So.2d
1242, 1252 (Miss.1995). One year later, however, in Hunter v. State,
684 So.2d 625 (Miss.1996), we came to a different result when faced
with this very same issue. In that case, Hunter's robbery
instruction was refused by the trial court as confusing. Hunter's
counsel was given an opportunity by the trial court to amend the
instruction, but he failed to do so. Id. at 633-34. We reversed and
remanded for a new trial stating:
Indeed, no instruction on the elements of the
underlying offense was given. The defendant offered a confusing
instruction, which was properly refused. The State did not offer an
instruction on the elements of the underlying offense of robbery.
This Court holds that the State had a duty to ensure that the jury was
properly instructed on the elements of the underlying crime.
It is hornbook criminal law that before a
conviction may stand the State must prove each element of the offense.
Not only is this a requirement of the law of this State, due process
requires that the State prove each element of the offense beyond a
Neal v. State, 451 So.2d 743, 757 (Miss.1984). A
logical corollary of this principle is that, because the State has to
prove each element of the crime beyond a reasonable doubt, then the
State also has to ensure that the jury is properly instructed with
regard to the elements of the crime. See also Hosford v. State, 525
So.2d 789, 792 (Miss.1988) (quoting Adams v. State, 202 Miss. 68, 75,
30 So.2d 593 (Miss.1947) (“In conducting a criminal case, the
prosecuting attorney must be fair and impartial, and see that
defendant is not deprived of any constitutional or statutory right.”)
(emphasis in original)).
“Just as the State must prove each element of the
offense, the jury must be correctly and fully instructed regarding
each element of the offense charged.” Neal, 451 So.2d at 757, n. 9.
Failure to submit to the jury the essential elements of the crime is
“fundamental” error. Screws v. United States, 325 U.S. 91, 107, 65
S.Ct. 1031, 1038, 89 L.Ed. 1495 (1945). In capital murder cases, the
trial court is “required to instruct just as fully regarding the
definition of [the underlying crime] as it [is] on murder.” Id.
“[i]t is axiomatic that a jury's verdict may not
stand upon uncontradicted fact alone. The fact must be found via
jury instructions correctly identifying the elements of the offense
under the proper standards.” “Where the jury had incorrect or
incomplete instructions regarding the law, our review task is nigh
unto impossible and reversal is generally required.”
Henderson v. State, 660 So.2d 220, 222 (Miss.1995)
It is rudimentary that the jury must be instructed
regarding the elements of the crime with which the defendant is
charged. Therefore, even though the defendant did not present an
acceptable instruction, the State was obligated to do so. Reversal
on this issue is warranted. See Henderson v. State, 660 So.2d 220,
222 (Miss.1995); Neal v. State, 451 So.2d 743, 757 n. 9 (Miss.1984);
see also Watson v. State, 465 So.2d 1025, 1031 (Miss.1985).
Hunter, 684 So.2d at 635-36.
¶ 16. In Hunter, the State argued that the
defendant is responsible for offering an instruction providing the
elements of the underlying felony, and cited Ballenger along with
several other cases in support of its position. In confirming that
the issue in Ballenger was decided on the basis of a procedural bar,
and not on the merits, we explained:
However, the State argues that it is incumbent on
the defendant to offer such an instruction, and cites several cases,
all of which can be distinguished. See Ballenger v. State, 667 So.2d
1242, 1252 (Miss.1995); Conner v. State, 632 So.2d 1239, 1254
(Miss.1993); Gray v. State, 472 So.2d 409, 416 (Miss.1985)(reversed
on other grounds, 481 U.S. 648, 107 S.Ct. 2045, 95 L.Ed.2d 622
Ballenger is factually similar to the case sub
judice, in that the defendant/appellant was convicted of capital
murder during the commission of a robbery and sentenced to death.
Ballenger claimed that the trial judge erred by failing to grant two
of her instructions, which discussed the elements of robbery. One of
the instructions was not marked given, refused, or withdrawn, and was
not discussed in the transcript. This Court held that Ballenger's
argument with regard to that instruction was not properly preserved
for appeal. The second instruction was on the lesser included
offense of robbery. This Court ruled that the trial judge properly
refused to give the instruction because it would have allowed the jury
to find Ballenger guilty of robbery, but not guilty of capital murder.
Id. at 1252. In the case sub judice, the proposed instruction
containing the elements of the underlying crime was marked “refused”.
Furthermore, Hunter did receive a proper lesser included offense
instruction on simple murder. Therefore, Ballenger is factually
distinguishable and does not apply.
The other cases cited by the State dealt with
lesser included offense instructions. See Conner v. State, 632 So.2d
1239, 1254 (Miss.1993); Gray v. State, 472 So.2d 409, 416
(Miss.1985). These cases can be distinguished from the case at hand,
which deals with an instruction on the underlying crime-that is, the
alleged crime which elevated this to a capital case. See also Harper
v. State, 478 So.2d 1017, 1023 (Miss.1985).
Hunter, 684 So.2d at 635-36 (emphasis added)
¶ 17. We went on to say:
This Court agrees that Ballenger correctly stands
for the propositions that it is incumbent upon the defendant to
preserve the record for appeal and to offer an instruction on any
lesser included offenses the defendant wishes to pursue. However,
Hunter properly preserved the issue for appeal. Furthermore, the
issue in dispute in the case sub judice is instruction on the
underlying crime-the crime which elevated this murder to a capital
case-not a lesser included offense instruction. See Ballenger, 667
So.2d at 1252.
Hunter, 684 So.2d at 636 n. 6 (emphasis added).
Hunter makes it clear that this issue was decided against Ballenger
on direct appeal on the basis of a procedural bar, and not on the
¶ 18. Approximately two years after Hunter, in
Shaffer v. State, 740 So.2d 273 (Miss.1998), we held:
The state argues that because Shaffer objected to
the instruction upon different grounds at trial, he is now
procedurally barred from raising this issue on appeal. We disagree.
Instructing the jury on every element of the charged crime is so
basic to our system of justice that it should be enforced by reversal
in every case where inadequate instructions are given, regardless of a
failure to object or making a different objection at trial.
Id. at 282 (emphasis added). We went on to say:
A conviction is not valid where the prosecution
does not prove each element of the charged offense beyond a reasonable
doubt. Davis v. State, 586 So.2d 817, 819 (Miss.1991). It follows
that a conviction is unenforceable where the jury does not find each
element of the offense beyond a reasonable doubt. Where the jury is
not even instructed on one of the vital elements of the offense, the
conviction must not survive the scrutiny of this Court.
¶ 19. As previously stated, the State argues that
this claim is barred by the doctrines of “different state or federal
legal theories,” and res judicata found in Miss.Code Ann.
§ 99-39-21(1994), which provides in relevant part:
(2) The litigation of a factual issue at trial and
on direct appeal of a specific state or federal legal theory or
theories shall constitute a waiver of all other state or federal legal
theories which could have been raised under said factual issue; and
any relief sought under this chapter upon said facts but upon
different state or federal legal theories shall be procedurally barred
absent a showing of cause and actual prejudice.
(3) The doctrine of res judicata shall apply to all
issues, both factual and legal, decided at trial and on direct appeal.
(4) The term “cause” as used in this section shall
be defined and limited to those cases where the legal foundation upon
which the claim for relief is based could not have been discovered
with reasonable diligence at the time of trial or direct appeal.
(5) The term “actual prejudice” as used in this
section shall be defined and limited to those errors which would have
actually adversely affected the ultimate outcome of the conviction or
¶ 20. In Irving v. State, 618 So.2d 58 (Miss.1992),
Irving filed a second petition for post conviction relief arguing that
the jury was allowed to consider the unconstitutionally vague
“heinous, atrocious or cruel” aggravating factor during sentencing.
Id. at 60-61. The State argued that Irving was procedurally barred
from asserting his claims based on Miss.Code Ann. § 99-39-21(1), (2)
and (3). 618 So.2d at 61. We found that the issue had been raised
on direct appeal, and thus Miss.Code Ann. § 99-39-21(1) was not
applicable. 618 So.2d at 61 n. 5.
¶ 21. We went on to state:
The State, as mentioned above, also argues Irving
is not entitled to rely on Maynard[ v. Cartwright, 486 U.S. 356, 360,
108 S.Ct. 1853, 1857, 100 L.Ed.2d 372, 379 (1988)] and Clemons as
intervening authority, thus trapping Irving in the web of either
Miss.Code Ann. § 99-39-21(2) or § 99-39-21(3). This Court, however,
has already responded to this argument, holding Maynard and Clemons
would have “actually adversely affected” a petitioner's sentence
insofar as this Court lacks the authority to reweigh aggravating and
mitigating circumstances to uphold a death sentence which is founded,
in part, on a constitutionally infirm aggravator. Pinkney v. State,
602 So.2d 1177, 1178 (Miss.1992); Jones v. State, 602 So.2d 1170,
1173 (Miss.1992); Shell v. State, 595 So.2d 1323, 1324 (Miss.1992);
Clemons v. State, 593 So.2d 1004, 1006 (Miss.1992)․
Irving, 618 So.2d at 61-62 (footnotes omitted).
In the present case, Hunter and Shaffer call for automatic reversal;
and therefore, we find that Ballenger has sufficiently demonstrated
“actual prejudice” as defined by Miss.Code Ann. § 99-39-21(5) to
overcome the procedural bar.
¶ 22. Miss.Code Ann. § 99-39-27(7)(Supp.1999)
In granting the application the court, in its
(a) Where sufficient facts exist from the face of
the application, motion, exhibits, the prior record and the state's
response, together with any exhibits submitted therewith, or upon
stipulation of the parties, grant or deny any or all relief requested
in the attached motion.
(b) Allow the filing of the motion in the trial
court for further proceedings under Sections 99-39-13 through
In the present case, there is no reason for an
evidentiary hearing to be held or to require the motion to be filed in
the trial court, because this issue involves purely a question of law.
Therefore, pursuant to our authority found in Miss.Code Ann.
§ 99-39-27(7), we vacate Ballenger's conviction and sentence and
remand this case to the circuit court for a new trial. Having found
that Ballenger's conviction and sentence should be vacated pursuant to
Hunter and Shaffer, we find it unnecessary to address the remaining
issues raised by Ballenger.
¶ 23. We find Ballenger's claim regarding the
failure of the trial court to instruct the jury on the elements of the
underlying felony of robbery in this case to be meritorious.
Ballenger has made a sufficient showing on this claim to overcome the
procedural bar. Since this claim solely involves a question of law,
and pursuant to the authority found in Miss.Code Ann. § 99-39-27(7),
we grant the amended and supplemented motion, vacate Ballenger's
conviction for capital murder and sentence of death by lethal
injection, and remand this case to the Circuit Court of Leake County
for a new trial consistent with this opinion.
¶ 24. POST-CONVICTION RELIEF GRANTED; CONVICTION
OF CAPITAL MURDER AND SENTENCE OF DEATH BY LETHAL INJECTION VACATED;
REMANDED FOR A NEW TRIAL CONSISTENT WITH THIS OPINION.
¶ 25. The majority vacates Ballenger's conviction
and sentence of death based upon Hunter v. State, 684 So.2d 625
(Miss.1996). There, this Court deviated from our long-standing
precedents. I dissented in Hunter, id. at 639-43, and accordingly
adopt that dissent in the case at bar.
¶ 26. This very issue was addressed initially in
the case at bar on direct appeal wherein the Court held that “[s]ince
instruction D-22 was never brought to the attention of the trial court
and instruction D-29 was properly refused, it was incumbent upon
Ballenger to request an appropriate instruction regarding the elements
of robbery.” Ballenger v. State, 667 So.2d 1242, 1252 (Miss.1995).
“The case law does not impose upon a trial court a duty to instruct
the jury sua sponte, nor is a court required to suggest instructions
in addition to those which the parties tender.” Id. (quoting Conner
v. State, 632 So.2d 1239, 1254 (Miss.1993)). See also Billiot v.
State, 454 So.2d 445, 462 (Miss.1984) (stating that the combined
failure to object or to request an appropriate instruction operates to
waive any objection on this issue); Gilliard v. State, 428 So.2d 576,
583 (Miss.1983) (same); Gray v. State, 472 So.2d 409, 416 (Miss.1985)
¶ 27. I noted previously in dissent, “While no
single instruction did include all elements of robbery, some of the
elements are listed in Instructions, S-1A, S-2 and S-8. Surely, these
instructions assisted the jury which obviously believed beyond a
reasonable doubt that Hunter robbed and killed Brewer.” Hunter, 684
So.2d at 639. Here, considering the instructions as a whole, there
is sufficient mention of some of the elements listed to have
reasonably assisted the jury to believe beyond a reasonable doubt that
Ballenger paid to have Myrtle Ellis robbed and killed. I find no
difference between the case at bar and Hunter or Dufour v. State, 453
So.2d 337 (Miss.1984). In Dufour, no instruction defining the
underlying felony of robbery was given, and the Court held that the
evidence adduced at trial proved that the murder was committed during
the course of a robbery. Dufour, 453 So.2d at 346. Here, there is
more than sufficient evidence, in fact, overwhelming evidence
supporting the jury's verdict that Ellis was robbed and murdered by
accomplices hired by Ballenger. Thus, Ballenger was guilty of
capital murder and appropriately received the sentence of death.
¶ 28. For these reasons, I respectfully dissent.
PITTMAN, Presiding Justice, for the Court:
PRATHER, C.J., BANKS, P.J., McRAE AND WALLER, JJ.,
CONCUR. SMITH, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY
MILLS, COBB AND DIAZ, JJ.MILLS, COBB AND DIAZ, JJ., JOIN THIS OPINION.