Bannister v. State, 97-CP-01060-SCT.

• Decision Date: 14 January 1999
• Docket Number: No. 97-CP-01060-SCT.,97-CP-01060-SCT.
• Citation: 731 So.2d 583
• Parties: Darryl BANNISTER v. STATE of Mississippi.
• Court: Mississippi Supreme Court

731 So.2d 583

Darryl BANNISTER v. STATE of Mississippi.

No. 97-CP-01060-SCT.

Supreme Court of Mississippi.

January 14, 1999.

Darryl Bannister, pro se. Office of the Attorney General by Dewitt T. Allred, III, Attorney for Appellee.

Before PITTMAN, P.J., and 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, 100 S.Ct. 1432, 63 L.Ed.2d 715 (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, 52 S.Ct. 180, 76 L.Ed. 306 (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...