                           IN THE SUPREME COURT OF MISSISSIPPI
                                    NO. 97-DR-00749-SCT
VERNICE BALLENGER
v.
STATE OF MISSISSIPPI

DATE OF JUDGMENT:                       01/13/93
TRIAL JUDGE:                            HON. MARCUS D. GORDON
COURT FROM WHICH                        LEAKE COUNTY CIRCUIT COURT
APPEALED:
ATTORNEYS FOR APPELLANT:                ROBERT B. McDUFF
                                        FRITZ BYERS
ATTORNEY FOR APPELLEE:                  OFFICE OF THE ATTORNEY GENERAL
                                        BY: MARVIN L. WHITE, JR.
DISTRICT ATTORNEY:                      KEN TURNER
NATURE OF THE CASE:                     CRIMINAL - DEATH PENALTY - POST CONVICTION
                                        RELIEF
DISPOSITION:                            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 - 06/22/2000
MOTION FOR REHEARING
FILED:
MANDATE ISSUED:                         7/20/2000



     EN BANC.

     PITTMAN, PRESIDING JUSTICE, FOR THE COURT:


                                    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 occurred:


June 24, 1996 Petition for Writ of Certiorari denied by the United States Supreme Court. See Ballenger
              v. Mississippi, 518 U.S. 1025, 116 S. Ct. 2565, 135 L. Ed. 2d 1082 (1996).
August 27,    Ballenger's Motion for Rehearing by the United States Supreme Court denied. See
1996          Ballenger v. Mississippi, 518 U.S. 1048, 117 S. Ct. 26, 135 L. Ed. 2d 1119 (1996).
December 5, Hunter v. State, 684 So.2d 625 (Miss. 1996), handed down as modified on denial of
1996          rehearing.
February 7,   Ballenger filed a pro se petition requesting appointment of counsel and a stay of execution
1997          with the United States District Court for the Southern District of Mississippi.
February 20, Ballenger's execution was stayed by the District Court.
1997
March 26,     Robert B. McDuff and Fritz Byers appointed by the District Court to represent Ballenger
1997          and pursue federal habeas relief within ninety days.
May 15, 1997 Time to file a petition for writ of habeas corpus extended for sixty days.
June 18, 1997 Motion to Vacate Judgment and Sentence filed in this Court by Ballenger.
July 11, 1997 First Amended Motion to Vacate Judgment and Sentence filed by Ballenger.
July 29, 1997 Supplement to the Motion to Vacate Judgment and Death Sentence and Application for
              Leave to File Second Amended Motion to Vacate Judgment and Death Sentence filed by
              Ballenger.
August 15,    Second Supplement to the Motion to Vacate Judgment and Death Sentence filed by
1997          Ballenger.
November 20, Response to Ballenger's Application for Leave to File Second Amended Motion to
1997          Vacate Judgment and Death Sentence filed by the State of Mississippi.
March 19,     Shaffer v. State, 740 So.2d 273 (Miss. 1998), handed down.
1998
September 2, Shaffer v. State, rehearing denied.
1999

¶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 left.

¶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 Greenville.

¶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 ROBBERY

¶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 reasonable doubt.

      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. Indeed,

     "[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) (citations omitted).

     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
     (1987)).

     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) (footnote omitted).

¶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 merits.

¶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.

Id.

¶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 sentence.

¶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 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) provides:

      In granting the application the court, in its discretion, may:

      (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 99-39-23.

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.

                                                CONCLUSION
¶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.

      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.

      SMITH, JUSTICE, DISSENTING:

¶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) (same).

¶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.
MILLS, COBB AND DIAZ, JJ., JOIN THIS OPINION.
