                            IN THE SUPREME COURT OF MISSISSIPPI
                                     NO. 97-CP-01060-SCT
DARRYL BANNISTER
v.
STATE OF MISSISSIPPI

DATE OF JUDGMENT:                                   10/02/1997
TRIAL JUDGE:                                        HON. FRANK ALLISON RUSSELL
COURT FROM WHICH APPEALED:                          TISHOMINGO COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                             PRO SE
ATTORNEY FOR APPELLEE:                              OFFICE OF THE ATTORNEY GENERAL
                                                    BY: DEWITT T. ALLRED, III
NATURE OF THE CASE:                                 CIVIL - POST CONVICTION RELIEF
DISPOSITION:                                        AFFIRMED - 1/14/99
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                                     4/8/99




      BEFORE PITTMAN, P.J., SMITH AND MILLS, JJ.


      SMITH, JUSTICE, FOR THE COURT:




                                      STATEMENT OF THE CASE

¶1. This appeal is from an Order dated October 2, 1997, of the Circuit Court of Tishomingo County
granting in part and denying in part a motion for post-conviction collateral relief filed by Darryl Bannister on
April 20, 1993. The motion sought to vacate Bannister's convictions upon pleas of guilty, entered on April
27, 1990, to capital murder, burglary, armed robbery, and two counts of escape.

¶2. The Circuit Court granted Bannister's post-conviction relief motion as to his conviction for burglary ,
since it was the same crime used as the underlying felony for the capital-murder conviction, and denied the
motion as to the other convictions. Feeling aggrieved, Bannister appeals to this Court and raises the
following issues:

I. THE COURT ERRED IN CHARGING BANNISTER WITH THREE CRIMES WHEN IN
FACT THERE WAS ONLY ONE, THAT BEING CAPITAL MURDER WITH THE
UNDERLYING CRIME BEING BURGLARY OF AN OCCUPIED DWELLING AT NIGHT
ARMED WITH A DEADLY WEAPON.


II. THE COURT ERRED IN CHARGING AND CONVICTING BANNISTER OF
BURGLARY OF A DWELLING AND ARMED ROBBERY, AS THESE TWO CONVICTIONS
WERE ONLY ONE OFFENSE, THAT BEING CAPITAL MURDER WITH THE
UNDERLYING OFFENSE BEING BURGLARY.

III. THE COURT ERRED IN ACCEPTING BANNISTER'S GUILTY PLEA, AS IT VIOLATES
THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT OF THE U.S.
CONSTITUTION.

IV. THE COURT ERRED IN VACATING AND SETTING ASIDE BANNISTER'S
CONVICTION AND SENTENCE FOR THE BURGLARY AND RETAINING HIS
CONVICTIONS FOR CAPITAL MURDER AND ARMED ROBBERY AS ALL THREE OF
THESE CRIMES WERE ONE OFFENSE, THAT BEING CAPITAL MURDER DURING THE
COMMISSION OF A BURGLARY.

V. THE COURT ERRED IN VACATING AND SETTING ASIDE BANNISTER'S
CONVICTION AND SENTENCE FOR THE BURGLARY AND RETAINING HIS
CONVICTIONS FOR CAPITAL MURDER AND ARMED ROBBERY AS ALL THREE OF
THESE CONVICTIONS (PLUS TWO OTHER CONVICTIONS) WERE ALL PART OF ONE
PLEA BARGAIN AGREEMENT.

VI. BANNISTER'S COUNSEL DURING THE TRIAL PHASE WAS INEFFECTIVE, AS HIS
COUNSEL (MR. MIKE COOKE) NEVER OBJECTED TO THE DOUBLE JEOPARDY MR.
BANNISTER WAS BEING SUBJECTED TO, NOR DID HE EVER ADVISE MR.
BANNISTER OF HIS RIGHT TO PROTECTION AGAINST DOUBLE JEOPARDY, AND
MR. COOKE ALLOWED BANNISTER TO MAKE A PLEA AGREEMENT THAT WAS IN
DIRECT VIOLATION OF THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH
AMENDMENT OF THE U.S. CONSTITUTION.

                            LEGAL ANALYSIS

I. THE COURT ERRED IN CHARGING BANNISTER WITH THREE CRIMES WHEN IN
FACT THERE WAS ONLY ONE, THAT BEING CAPITAL MURDER WITH THE
UNDERLYING CRIME BEING BURGLARY OF AN OCCUPIED DWELLING AT NIGHT
ARMED WITH A DEADLY WEAPON.

II. THE COURT ERRED IN CHARGING AND CONVICTING BANNISTER OF
BURGLARY OF A DWELLING AND ARMED ROBBERY, AS THESE TWO CONVICTIONS
WERE ONLY ONE OFFENSE, THAT BEING CAPITAL MURDER WITH THE
UNDERLYING OFFENSE BEING BURGLARY.

IV. THE COURT ERRED IN VACATING AND SETTING ASIDE BANNISTER'S
CONVICTION AND SENTENCE FOR THE BURGLARY AND RETAINING HIS
CONVICTIONS FOR CAPITAL MURDER AND ARMED ROBBERY, AS ALL THREE OF
THESE CRIMES WERE ONE OFFENSE, THAT BEING CAPITAL MURDER DURING THE
COMMISSION OF A BURGLARY.

¶3. Bannister contends that the court erred in convicting him of three crimes when in fact there was only one
offense, that being capital murder with the underlying offense being burglary. The three crimes that Bannister
is referring to are capital murder, burglary of an occupied dwelling at night armed with a deadly weapon and
armed robbery. He asserts that all three charges were the result of one single incident, one actual crime.

¶4. Bannister offers all three counts of his grand jury indictment. The first count, is that Darryl Bannister did
willfully, unlawfully and feloniously, and with deliberate design kill and murder William Soloman a human
being while he, the said Darryl Bannister, was engaged in the felony crime of burglary, in violation of Miss.
Code Ann., Section 97-3-19 (2)(e). The second count, is that Darryl Bannister did willfully, unlawfully,
feloniously and burglariously break and enter a certain occupied dwelling house at night armed with a
deadly weapon, the property of William Soloman, at a time when William Soloman, a human being was
present therein, with the felonious and burglarious intent to take, steal and carry away the goods, chattles
and personal property of the said William Soloman, in said dwelling house being kept for use or storage.
The third count, is that in and upon William Soloman, then and there Darryl Bannister did unlawfully and
feloniously make an assault on the said William Soloman, and did then and there feloniously put in fear of
immediate injury to his person, by the exhibition of a deadly weapon, to-wit a knife, and from his presence
and against his will, did feloniously and unlawfully rob, steal and carry away a hunting knife, and a .22
caliber rifle, the personal property of the said William Soloman.

¶5. Bannister argues that counts 1,2, and 3, all have the same and almost identical language. Bannister cites
the case of United States v. Shaw, 701 F. 2d 367 (5th Cir. 1983) for the proposition that "a defendant
may be convicted of two separate offenses arising from a single act so long as each requires proof of fact
not essential to the other."

¶6. Bannister contends that a review of the case shows that only capital murder with the underlying crime of
robbery was committed. He asserts that the statute for capital murder the state chose to use states that
robbery was the underlying crime and the state chose to make another count of robbery and yet still a third
count of armed robbery which is also included in the statute used for the capital murder.

¶7. Bannister argues that he should not have been convicted of burglary of an occupied dwelling at night
with a deadly weapon and armed robbery because both of these crimes have essential elements of the
principle offense of capital murder during the commission of a robbery. Bannister cites Whalen v. United
States, 445 U.S. 684 (1980), for the principle that the three primary purposes of the Double Jeopardy
Clause are that (1) it protects against a second prosecution for the same offense after an acquittal, (2) it
protects against a second prosecution for the same offense after a conviction, and (3) it protects against
multiple punishments for the same offense. Bannister offers that there can be no question that three
convictions cannot stand for what is, at most, one crime.

¶8. In issues two and four Bannister contends that on October 2, 1997 Circuit Judge Frank A. Russell filed
an Order vacating and setting aside his conviction and sentence for the burglary of a dwelling at night while
armed with a deadly weapon.

¶9. Bannister argues that the armed robbery conviction should also have been vacated and set aside as
there is essentially no difference between armed robbery and burglary of an occupied dwelling at night while
armed with a deadly weapon.
¶10. The State contends that the Circuit Court granted appropriate post-conviction collateral relief by
vacating the burglary conviction, but argues that the claim that it was a double jeopardy violation for
Bannister to be convicted of both capital murder/burglary and armed robbery is without merit.

¶11. Bannister was convicted, by way of guilty plea, of capital murder/burglary, burglary while armed with a
deadly weapon, armed robbery and two counts of escape. Bannister filed a post conviction relief motion in
the trial court alleging that the conviction of burglary constituted double jeopardy as that charge was used as
the aggravating factor in his capital murder conviction. The trial court agreed and vacated the conviction and
sentence for the burglary charge. He now contends that the armed robbery conviction should have been set
aside because essentially there is no difference between armed robbery and burglary.

¶12. Although the state may freely define crimes and assign punishments, it is not allowed to punish a
defendant for a crime containing elements which are completely enveloped by an offense for which a
defendant was previously convicted. See Blockburger v. United States, 284 U.S. 299 (1932). "If an
individual is charged with two offenses, and all the elements of one are included within and are part of a
second greater offense, Blockburger intervenes. It charges that we compare statutory offenses, as
indicated, and see whether each requires proof of a fact which the other does not." Meeks v. State, 604
So. 2d 748, 751 (Miss. 1992). "Even though there may be a substantial overlap in the proof supporting the
convictions of the different crimes, the Blockburger test is met where each offense requires proof of an
element not necessary to the other." Holly v. State, 671 So. 2d 32, 44 (Miss. 1996) (citing Brock v.
State, 530 So. 2d 146, 150 (Miss. 1988)).

¶13. Bannister's capital murder conviction fell under Miss. Code Ann. § 97-3-19 (2)(1994) which provides
as follows:

      (2) The killing of a human being without the authority of law by any means or in any manner shall be
      capital murder.....

      (e) When done with or without any design to effect death, by any person engaged in the commission
      of the crime of ... burglary...

¶14. Miss. Code Ann. § 97-17-21 provides the definition of those people guilty of the crime of burglary:

      Every person who shall be convicted of breaking and entering, in the day or night, the dwelling house
      of another, in which there shall be, at the time, some human being, with intent to commit some crime
      therein, either by forcibly bursting or breaking the wall, or an outer door.... shall be guilty of burglary.

¶15. Bannister's conviction for armed robbery fell under Miss. Code Ann. § 97-3-79 which provides the
definition of those guilty of the crime of robbery; use of a deadly weapon:

      Every person who shall feloniously take or attempt to take from the person or from the presence the
      personal property of another and against his will by violence to his person or by putting such person in
      fear of immediate injury to his person by the exhibition of a deadly weapon.....

¶16. Following Blockburger, each offense requires proof of an element not necessary to the other.
Therefore, Bannister was correctly charged with capital murder/burglary and armed robbery. The ruling of
the lower court is affirmed.
III. THE COURT ERRED IN ACCEPTING BANNISTER'S GUILTY PLEA, AS IT VIOLATES
THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT OF THE U.S.
CONSTITUTION.

V. THE COURT ERRED IN VACATING AND SETTING ASIDE MR. BANNISTER'S
CONVICTION AND SENTENCE FOR THE BURGLARY AND RETAINING HIS
CONVICTIONS FOR CAPITAL MURDER AND ARMED ROBBERY AS ALL THREE OF
THESE CONVICTIONS WERE PART OF ONE PLEA BARGAIN AGREEMENT.

¶17. Bannister entered into a plea agreement with the lower court and was convicted of the charges of
capital murder/burglary, burglary armed with a deadly weapon, armed robbery and two escape charges.
He requested post conviction relief asking the court to set aside the sentences and convictions of all crimes.
The court gave partial relief in that it set aside the conviction and sentence for the burglary charge and left
the rest of the sentence intact.

¶18. Bannister cites the case of Fuselier v. State, 654 So. 2d 519 (Miss. 1995) for the proposition that
"Error in charging defendant with capital murder and same burglary that was necessary to support capital
murder offense and accepting guilty pleas on both charges necessitated vacation of both burglary conviction
and sentences as well as guilty plea to capital murder and sentences..."

¶19. In Fuselier, defendant pled guilty to capital murder and burglary and in exchange received a non-
recidivist life sentence for capital murder and a consecutive 25 year sentence for burglary. Fuselier moved
to set aside judgment of the burglary conviction. His motion was denied. This Court found the trial court
erred in allowing Fuselier to plead guilty to two separate crimes when he was only charged with one. The
Court vacated Fuselier's burglary conviction and sentence as well as his guilty plea to capital murder
reasoning:

      "If we were to reverse and render only his burglary conviction and sentence, Fuselier, who testified at
      his plea hearing that he had four previous felony convictions, would now be eligible for parole on the
      capital murder sentence. In all probability, the State would never have made a plea bargain allowing
      Fuselier to plead to non-habitual capital murder, making him eligible for parole, if it had not been for
      the additional twenty-five year sentence for burglary. Fuselier should not be allowed to benefit from
      an invalid plea bargain entered into in good faith by the State.

Fuselier, 654 So. 2d at 523.

¶20. This case can be distinguished in that the lower court corrected its error and granted Bannister his
relief by vacating his conviction for the burglary that was used to effectuate the capital murder. This would
not put Bannister in a position contrary to the agreement the State intended because the sentences were to
run concurrent. Therefore, the decision of the lower court is affirmed.

VI. BANNISTER 'S COUNSEL DURING THE TRIAL PHASE WAS INEFFECTIVE, AS HIS
COUNSEL NEVER OBJECTED TO THE DOUBLE JEOPARDY MR. BANNISTER WAS
BEING SUBJECTED TO, NOR DID HE EVER ADVISE MR. BANNISTER OF HIS RIGHT
TO PROTECTION AGAINST DOUBLE JEOPARDY, AND HE ALLOWED BANNISTER TO
MAKE A PLEA AGREEMENT THAT WAS IN DIRECT VIOLATION OF THE DOUBLE
JEOPARDY CLAUSE OF THE FIFTH AMENDMENT OF THE U.S. CONSTITUTION.
¶21. Bannister raises this issue but fails to address it in his brief. Bannister has waived the point by failing to
support this claim with authority. This Court held in Underwood v. State, 708 So. 2d 18, 26 (Miss. 1998)
:

      We have held that "issues unsupported and not argued are abandoned and need not be considered."
      Thibodeaux v. State, 652 So. 2d 153, 155 (Miss. 1995) (citing Pate v. State, 419 So. 2d 1324,
      1325-26 (Miss. 1982)).

¶22. By not addressing this issue in his brief, Bannister has waived the point.

                                                CONCLUSION

¶23. Bannister pled guilty to capital murder with the underlying felony of burglary, burglary of a dwelling at
night while armed, and armed robbery, along with two counts of escape. The lower court correctly granted
Bannister post-conviction relief by vacating the burglary at night while armed. Armed robbery and burglary
each require an element not necessary to the other. Therefore, the ruling of the lower court is affirmed.

¶24. DENIAL OF POST-CONVICTION RELIEF AFFIRMED.

PRATHER, C.J., SULLIVAN AND PITTMAN, P.JJ., BANKS, ROBERTS, MILLS AND
WALLER, JJ., CONCUR. McRAE, J., CONCURS IN RESULT ONLY.
