Ballenger v. State
| Decision Date | 21 September 1995 |
| Docket Number | No. 93-DP-00081-SCT,93-DP-00081-SCT |
| Citation | 667 So.2d 1242 |
| Parties | Vernice BALLENGER v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Andre de Gruy, Charles C. Pearce, Jackson, MS, for Appellant.
Michael C. Moore, Attorney General, Jackson, MS; Marvin L. White, Jr., Assistant Attorney General, Jackson, MS; Charlene R. Pierce, Sp. Ass't Attorney General, Jackson, MS, for Appellee.
En Banc.
Vernice 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. 1 Finding no reversible error, we affirm both Ballenger's conviction and sentence of death.
Sometime prior 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.
Four separate 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 Ritter testified 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.
spotted a hunter in the woods. Again they returned to Ballenger's house.
When they 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.
Ritter stated 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 doll.
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.
The three returned to Ballenger's house and told her what had happened. Ritter testified that Ballenger
[w]anted to 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?" 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.
Ballenger 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 Greenville.
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.
Ellis never 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.
Featherston also 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.
I. THE TRIAL COURT ERRED IN DENYING INDIVIDUAL SEQUESTERED VOIR DIRE.
Ballenger contends that the trial court erred in denying individual sequestered voir dire concerning pre-trial publicity of the case. Prior to trial Ballenger filed a Motion for Individual Sequestered Voir Dire. A motions hearing was held on September 11, 1992, during which the trial court ruled on numerous motions filed by the defendant. Ballenger offered no affidavits to support this motion nor did she put on any evidence in support of the motion during the motions hearing. The Motion for Individual Sequestered Voir Dire was denied by the trial court.
Ballenger admits in her brief that all potential jurors indicated that they were not prejudiced by the information they had received. The only juror Ballenger attempted to question individually was Eubanks. Defense counsel made no attempt...
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