IN THE SUPREME COURT OF MISSISSIPPI
N O. 2015-CT-00016-SCT
TREV IOUN LAMONT CORNELIUS BRIGGS a/k/a T.L. BRIGGS a/k/a T.L. CORNELIUS BRIGGS a/k/a TREV IOUS LAMONT CORNELI BRIGGS a/k/a TREV IOUN LAMOUNT CORNELIUS BRIGGS a/k/a TREV

IOUS BRIGGS a/k/a TREV IOUN L.C. BRIGGS a/k/a TREV

I OUN BRIGGS

v. STATE OF MISSISSIPPI
ON WRIT OF CERTIORARI

DATE OF JUDGMENT: 09/29/2014 TRIAL JUDGE: HON. JOHN HUEY EMFINGER TRIAL COURT ATTORNEYS: ABRAHAM ROW E MICHAEL GUEST BRYAN BUCKLEY COURT FROM W HICH APPEALED: MADISON COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: OFFICE OF THE STATE PUBLIC DEFENDER BY: JUSTIN TAYLOR COOK GEORGE T. HOLMES ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JEFFREY A. KLINGFUSS DISTRICT ATTORNEY: MICHAEL GUEST NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 07/27/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED:

EN BANC. BEAM, JUSTICE, FOR THE COURT:¶1. Trevioun Briggs was convicted in the Circuit Court of Madi s o n C o unty o f robbery and witness-tam

pering. The C ourt of A ppeals af f irm ed both c onvictions in Briggs v. State , 2016
W L 2981728, a t * 1 ( Miss. Ct. A pp. May 24, 2016). Briggs petitioned this Court f or certiorari, which w as granted to c onsider whether his indictm ent f or the witness-tam

pering

count w as def

ective. Finding that the indictm ent f airly t racked the language of Mississippi Code Section 97-9-115, we af f irm the judgm ent of t he Court of Appeals.
FACTS ¶2. Briggs was convicted of robbing a wom an i n the Northp a r k M a l l p a r k i n g l o t in Ridgeland, Mississippi, on the evening of Decem b er 14, 2013. The w om an was holding her three-y ear-old son and loading shop p i ng bags into her c ar when B riggs approached f rom behind and struck her in the b ack of the head, causing her to drop the child. Briggs snatched the shopping bags a nd ran a way . T he wom a n identif ied her attacker as a b lack m a le wearing

a r ed sweatshirt. A f

ew hours later, Briggs was a r rested outside the m all af

ter a ttem pting to
return stolen item s in exchange f or a cash ref

und. Af ter his arrest, an orange sweatshirt and other s tolen item s were f

ound inside his vehicle. Just bef ore Briggs’s arrest, he successf ully had retu r n e d o t h er stolen item s to v arious m all retailers, and the retailers’ e m ploy ees identif ied him at trial. ¶3. Briggs wa s a r r e s t e d f or f alse pretense and i ncarcerated at the Madison C ounty Jail.
Four day s af

ter his arrest, while i n jail, Briggs placed several recorded phone calls to various acquaintances. In t he recordings, Briggs requested that the person to whom he was speaking either provide an alibi f

or the tim e of the robbery , or ask a third person to d o so on h is behalf

.

2On March 28, 2014, Briggs was i ndicted f o r robbery and witness t am perin g . A t t rial, the
State placed the recorded conversations in evidence. The jury f ound Briggs g uilty of robbery and witness-tam

pering.
LAW AND ANALYSIS ¶4. Section 97-9-115 provides: (1) A p e r s o n c om m its the crim e o f tam pering with a witness if he intentionally or k

nowingly attem

pts t o induce a w itness or a person he believes will be called as a witness in any of f icial proceeding to: (a) Testif y f alsely or unlawf

ully withhold testim ony ; or (b) Absent him self f

rom any of

f i cial proceeding to which he h as been legally

sum m oned. Miss. Code Ann. § 97–9–115 (Rev. 2014) (em phasis added). ¶5. Briggs’s indictm ent used the word “m ay ” instead of the word “will,” pro v i d i n g in pertinent part: [ Briggs] did willf

ully , f eloniously , intentio n a l ly [ ,] and k nowingly attem

p t to induce a witness or a person he believed m a y be called as a w i t n e s s against him , to-wit: [ B riggs], w hile incarcerated, m a d e c o n t a ct via telephone with a person w h o m h e then requested she attem p t to coerce another person into deceitf ully p r o v i d i n g [ B riggs] with

. . . an alibi, in violation o f Miss. Code Ann. § 97-9-115 . . . . (Em phasis added.) ¶6. Briggs’s jury

was instructed as f

o llows:
If y ou f ind f rom the evidence in this case bey o nd a reasonable doubt that:

. . . [ Briggs] did willf

ully , f elon i o u sly , intentionally [ ,] and k nowingly attem

p t to induce a w itness or a p e rson he believed would o r c ould be called as a witness

3at the trial of this cause to t estif y f alsely at this trial, an o f

f icial proceeding, by providing at said trial a n alibi f or t he Def

endant b y t e s t i f

y ing that the Def endant was a t a place other than the location of the crim e charged

. . . at the tim e the crim e w a s com m i tted, said testim ony being f alse and known by the Def endant to be f

alse, as w ell as be i n g m aterial to the subject m atter of the of f icial proceeding, n am ely this trial; then y ou s hall f ind [ B r i g gs] guilty of Tam pering with A W itness . . . . (Em phasis added.) ¶7. Briggs claim ed on appeal that both the indictm ent and the jury i n s t r u ction f ailed to track the statute’s language. Briggs subm itted that while “ i t m ay seem som ewhat trivial, the dif f erence between t he words ‘ will,’ ‘m ay ’ and ‘would or c ould’ are s ignif icant” because all contain “ dif

f erent knowledge r equirem ents.” W i thout e xplanation as to how or w hy , Briggs asserted that by u s e of the word “ m ay ” in the indictm ent, the State broadened t he activity f or which Briggs could be f

ound guilty under Section 97-9-115. Briggs then contended that by

use of t he words “would or could” in the jury instruction, the State l e s s e n e d i t s burdened
f rom that in the indictm ent’s language. ¶8. The Court of A ppeals f ound no m erit in Briggs’s claim s. In reaching its conclusion, the Court of Ap p e a l s f

o und that “ Briggs contacted a wom an and asked her to f abricate an alibi f or him during the tim es in w hich he was not s een o n the m a ll v ideo.” Briggs , 2016 W L 2981728, at *3. On these f acts, the court reasoned that “it m akes no dif f erence whether the indictm ent read ‘will’ or ‘m ay ’ or the jury instruction read ‘will’ or ‘would’ since the f actual basis surrounding the charge, a nd described in the i ndictm ent, dictated that B riggs thought, and in f act hoped, that the wom an he contacted would be calle d a s a w i t n e ss to provide Briggs with the alibi he sought.” Id

.

4¶9. W e agree.

¶10. A g ain, Briggs asserts that use of t he word “m a y ” in the in d i c t me n t b r o a d e n s t h e activity f or which Briggs could b e f ound guilty under Section 9 7-9-115. But Briggs does not speak to what activity the s tatute circum s cribes, or how u se of the w ord “will” lim its it, or how the word “m ay ” expands it. He m erely s uggests, given his assertions, that Section 97-9- 115 is lim ited to those persons designated as a witness by som e sort of process. ¶11. That m ay be a proper interpretation f or subsection ( b ) o f t h e statute based on the language: “Absent him sel f f rom any of

f icial proceeding to which he has been legally summoned .” Miss. Code Ann. § 9 7

- 9 -115(1)(b) (em p hasis added). But subsection (b), which sim

ply sets f orth another way a person m ay com m it the c rim e of witness-tam pering, is n ot applicable in this case. Ba s e d on t he essential f acts a lleged in the indictm ent constituting the of

f ense charged, subsection (a) and the l anguage contained in paragraph (1) that precedes it is what applies here. ¶12. First, this l anguage uses both the terms “ w i t n e s s ” and “person” to describe who an of f ender m ay not induce or attem pt to induce to testif

y f alsely i n a n y o f

f icial proceeding. This signif

ies t hat the statute is not lim ited to those d esignated a s w i t nesses by process, as Briggs suggests, but applies a l s o t o those so regarded b y f act or circum stance. See, e.g. , State v . Crider , 21 Ohio App. 3d 268, 487 N.E.2d 911, 912 (1984) (holding sam e f o r
purposes of Ohio’s witness-tam pering statute, based on the dictionary def inition of the term “witness,” which ref

ers to “one that is cognizant of som e thing b y d irect experience” or “one who beholds or otherwise has personal knowledge of som ething”).

5¶13. Second, the w ord “attem pt” is contained in the statute. This m e ans the of f ender need

n o t s u cceed or actually induce the witness or person to testif y f alsely f or purp o s e s o f subsection (a); he or she need only attem pt to induce the witness or person to do so. Thus,

w h ether that person is ever called t o testif y in a ny of

f i cial proceeding i s irrelevant f or purposes of subsection (a). ¶14. Third, the phrase “any of f icial proceeding” used in paragraph (1) is broadly inclusive, unlike its usage in subsection (b) , w h i c h by t he phrase “to which he has been legally

sum m oned,” lim its i ts a

pplication t o c i r c u mstances i n which an of f icial p roceeding is pending. For purposes of subsection (a), however, there is no express lim i tation. Thus, we read “any of

f icial proceeding” used in paragraph (1) to m ean potential f uture proceedings. ¶15. The Oregon Suprem e Court reached t he s am e conclusion when construing that state’s witnessing-tam

p ering statute, w hich is very sim ilar to o urs but uses t he word “m ay ” instead of the word “will.” See O regon v. Baile y , 213 P .3d 1240 ( Or. 2009) ( interpreting ORS 162.285(1)). 1 The Bailey court c o n c l u d e d that its statute does not require that an of f icial

1 Oregon’s witness-tam

pering statute states: A person com m its the crim e of tam pering with a witness if

: (a) The person knowingly induces or attem pts to i nduce a witness o r a pers on the person b elieves m ay be c alled as a witness in any o f

f icial pro c e e d i n g t o of

f er f alse testim ony or unlawf u lly withhold any

testim ony ; or (b) The person k

nowingly induce s o r attem pts t o induce a witness to be absent f

rom any of

f icial proceeding to which the person has been legally

sum m oned. ORS 162.285(1). 6proceeding be pending at the tim e “ tam pering” conduct occurs. This is because, f or purposes of subsection (a), contained i n ORS 162.285, there is n o express tim e lim itation in ref erence
to “any of

f icia l p r o c e e d i ng.” Id

. at 1243. This, according to Bailey , m ust m ean that any “potential f

u ture p roceedings [ are included] w ithin its s w eep.” I d

. The Bailey court f

urther concluded that, not only need an of f i cial proceeding not b e pendi n g f o r purposes of ORS 162.285(1)(a); an i nvestigation that m i ght b e c onducted in the case need not y et be underway either. Id . at 1246-47. ¶16. W e also point out that Alabam a has a sim ilar obstruction-of -j u s t i c e c h a p t e r i n its crim inal code with provisions alm ost identical to ours. Its witness-tam pering statute reads: (a) A person com m its t he crim e of t am p ering with a witness if he attem pts to induce a witness or a person he believes will be called as a witness in any official proceeding to: (1) Testif y f a lsely or unlawf

ully withhold testim ony ; or (2) Absent him self f

rom any of

f icial proceeding to which he h as legally been sum m oned. Ala. Code Ann. § 13A-10-124. ¶17. In Ivey v. S

t a t e , 8 2 1 So. 2d 937, 950 (Ala. 2001), overruled on other grounds , the Alabam a Suprem e Court concluded that “Section 13A-10-124 does not require that the f alse testim o ny or the withholding of testim o ny be carried out in order f

or the charge of

witness

tam pering to be com

p lete.” ¶18. In Barnette v. A labam a , 8 55 So. 2d 1 1 2 9 ( A l a . C r i m. App. 2003), the Court of Crim inal Appeals of A labam a addressed its witness-bribery statute, which, sim il a r to Mississippi’s witness-bribery statute, reads in pertinent part: “A person com m i ts the crim e

7of bribing a witness if he of f ers, c onf ers or agrees to conf

er any thing of value upon a witness

or a person he believes w ill be called as a witness in a ny official proceeding t o . . . [ c]orruptly inf

l uence the testim o ny of that person . . . .” See Ala. Code Ann. § 13A-10-121. 2 ¶19. In Barnette , a f

ew day s f ollowing an incident involving a sexual assault o f a fourteeny ear-old, which had been reported to the police, an acquaintance of the alleged perpetrator called the victim ’s stepf

ather a nd of

f ered him m oney to persuade the victim t o “tell the police that the [ incident] didn’t happen.” Barnette , 8 55 So. 2d at 1130. The acquaintance later was charged and convicted of bribing a witness. On ap p e a l , the def e ndant claim ed there was insuf f icient evidence to support his conviction because the State did n ot prove the victim or the stepf ather was a w itness in an of f icial proceeding, or that a n o f f icial proceeding had

com m enced at the tim e the bribery took place. Id . at 1134. ¶20. In af

f irm ing the conviction, the Alabama C o u r t o f A p p e als f ound the f

act that an of f icial proceeding had not y et begun to be of no m om ent. Id

. Based on the evidence

. . . presented, the jury could have reasonably c oncluded that, even though there was not any of f i cial proceeding p ending a t the tim e of the appellant’s actions, the appellant b elieved an of f icial proceeding would be initiated and believed [ the victim and/or her step-f ather] would be c a lled as a witness in that proceeding.
Id . at 1134-35.

2 C o m p are w ith Miss. Code Section 97-9-109 (Rev. 2014), which states:
A person com m i ts the crim e of bribing a witne s s i f h e i ntentionally or knowingly of

f ers, c onf e rs or agrees to conf

er any b enef

it upon a witness or a person he believes will be called as a witness in any official proceeding with intent to . . . [ i]nf

luence the testim ony

of that person . . . .

8¶21. The dissent agrees that an of f icial pro c e e d i ng need not be com m enced or pending when the inducem ent of f alse t estim ony is attem

pted, but contends, however, that the State nonetheless expanded upon the statutory d ef inition of t h e c r i me b y substituting the word “will” f or the word “m ay .” And by this s ubstitution, according to t he dissent, the State m ade the charge easier to p r ove. But o ther than pointing o ut that the two words can have dif f erent

m eanings, the dissent–like Briggs–f ails to explain how use o f t he word “m ay ” instead of “will” expands upon t he c onduct Section 97-9-115(1)(a) prohibits, or how its use prejudiced Briggs in any

def ense he m ay

have had against the charge. ¶22. Again, there is no requirem ent that an o f f ender succeed in his or her attem pt to induce another to testif

y f alsely in a ny potential of

f icial proceeding. Nor is there an “inevitability ” requirem ent as the dissent contends the statute contains. W ere there such, t he o f f ense would

not be consum m ated until the putative witness appeared at the of f i cial proceeding and gave f alse test i mony . B ut that is not the intent of the s tatute. Its clear purpose is to protect not only those designated as w itnesses by process, but those who m a y becom e witnesses due to circum stances such as those alleged in Briggs’s indictm ent. ¶23. In any such c ase, t here alway s exists the p ossibility (or contingency ) that the person the of f ender attem

pted to induce to give f

alse testim ony m ight not be c alled as a w itness to testif y in an of f icial proceeding. That is f actually what occurred here. ¶24. F or all intents and purposes, use of the word “m ay ” in t his insta n c e w a s me r e l y
gram m a tical. Its use was inconsequential, and it did not alter the substantive m eaning of the

9statute or disadvantage Briggs in a ny def ense(s) he m ay have had in the case. W e also f ind the sam e with regard to the com plained-of jury i nstruction.
CONCLUSION ¶25. Briggs’s convictions f or witness-tam

pering and f

o r robbery a r e af

f irm ed. ¶26. AFFIRMED. WALLER, C.J., AND RANDOLPH, P.J., CONCUR. M A X WELL AND CHAMBERLIN, J J., CONCUR IN PART AND IN RESULT WITHOUT SEPARATE WRITTEN OPIN I O N . K ITCHENS, J., CONCURS IN PART AND DISSENTS IN PART WITH S EPARATE WRITTEN OPINION JOINED B Y D I C K I N SON, P.J., KING AND COLEMAN, JJ.
K ITCHENS, JUSTICE, CONCURRING IN PART AND D ISSENTING IN PART: ¶27. I respectf

ully concur in part and dissent in p art. Because the w itness tam pering count
in Briggs’s indictm ent m isstated an essential elem ent o f t he crim e by substituting the word

may , f or the statutory word w ill , it was f atally def ective. Th e p u r

p o r ted witness tam

pering

count did not charge Briggs with any crim e. Theref o re, I would f

ind t hat reversal of Briggs’s conviction of witness tam p ering is required under the Sixth Am endm ent to the United States Constitution and Article 3, Section 26, of the Mississippi Constitution. I agree that Briggs’s robbery conviction m

ust be af f irm ed. A. Constitutional Requirements ¶28. W o rds do m a tter in indictm ents, perhaps m ore so t han in m ost other legal pleadings. The Sixth Am endm ent t o the United States Constitution p rovides that “the accused shall enjoy the right

. . . to be inf o rm ed of t h e n a t u r e and cause o f the a ccusation.” U.S. Const.

am end. VI. Under the Mississippi Constitution, “the accused shall h ave a right

. . . t o dem and

1 0the n ature and cause of the accusation.” Miss. Const. art. 3 , § 26. “An indictm ent m u st contain (1) the essential elem ents o f the of f ense charged, ( 2) suf

f icient f acts to f airly inf orm the def endant of the charge against which he m u st d ef end, and (3) suf

f icient f acts to enable
him to plead double j eopardy in the event of a f u t u r e p r osecution f

or the sam e of

f ense.”
Gilm er v . State , 955 So. 2d 8 29, 836-37 (Miss. 2007). “ An indictm ent which f ails to allege all essential elem ents of a c rim e runs af oul of our constitutions a nd is void.” T hom as v. State , 126 So. 3d 877, 879 (Miss. 2013). Because such a n i n d i c t ment is void and legally inoperative, there is no n e ed f or a showing o f prejudice to t he def en s e . If an indictm ent

m isstates the essential elem ents of the crim e , an appellate challenge to the indictm ent is never procedurally barred, but is subject to d e n o v o r eview under our longstanding precedent.
Gilm er , 955 So. 2d at 836. ¶29. Article 1 , S e c t i o n 1 , o f t h e M i s s i s s i p p i C o nstitution provides f or the separate

m agistracies o f the three governm ental d epartm ents: l egislative, judicial, a nd executive. Miss. Const. art. 1, § 1. The l egislative powers are vested in the legislature. Miss. Const. art. 4 § 3 3. T he legislative pow e r i ncludes the authority to declare and def ine those acts that constitute cr i me s . State e x. rel. Dist. Attorney v. Winslow , 208 Miss. 753, 7 61, 45 So. 2d 574, 576 (1950). W hen the p rosecutor – a m emb e r o f the executive branch – initiates a crim inal p rosecution via a grand jury , the language of the indict ment m ust include the language of the statute that def i nes t he crim e being charged. W arren v. State , 187 So. 3d 616, 622 (Miss. 2016). If a n indictm ent does not track the statutory language and instead

om its or m isstates o ne or m o r e of the crim e’s essenti a l elem ents, it e f f e ctively charges no

1 1crim e, and t he i ndictm ent m u st be dism issed

. T

h o m a s , 1 26 So. 3d at 8 79-80. Thus, the draf ter of an indictm ent m a y not constitutionally a ttem pt to broaden the reach of a crim inal

statute by substituting language th a t l i ghtens t he evidentiary burden of the prosecution. “[ T]he rule is

. . . that whatever sense of detestation the c ourt m ay entertain towards a party
upon the f acts, courts nevertheless m ay not im pose punishm ent upon one not within the strict letter of the law.” Winslow , 208 Miss. at 760, 45 So. 2d at 575.
B. The witness tampering count of Briggs’s indictment did not charge him w ith a crime. ¶30. Count II of Briggs’s indictm ent p u r ported to charge him with witness tam pering under Mississippi Code Section 97-9-115. That statute def ines the crim e o f

witness tam

pering as f ollows: (1) A person com m its t he crim e of t am pering with a w itness if he intentionally or knowingly attem

pts to induce a witne s s or a person he believes will be called as a witness in any of f icial proceeding to: (a) Testif y f alsely or unlawf

ully withhold testim ony ; or (b) A bsent him self f

rom any o f

f icial proceeding to which he h as been legally

sum m oned. Miss. C ode Ann. § 97-9-115 (Rev. 2014) (em p hasis added). Official proceeding is def ined

as “any proceeding h eard bef ore any legislative, judicial, adm inist r a t i v e , o r other governm ent
agency or of f icial authorized to hear evidence under oath.” ¶31. The charging language of Count II of

Briggs’s indictm ent is as f o llows: And, based u

pon a series of acts connected t ogether a nd constituting parts of a com m on s chem e and plan, T revioun Lam ount Cornelius Briggs, on or about the 18th day of Decem ber, 2013, in the county

af oresaid and within the jurisdiction of the C ourt, did willf ully , f eloniously , i n tentionally and knowingly

attem pt to induce a witness or a person he believed may b e called as a w itness against him , to-wit: Def endant, while incarcerated, m a de c ontact

1 2via telephone with a p e r s o n whom he then requested she attem pt to coerce another person into deceitf ully provi ding D ef

endant with with [ sic] an a libi, in violation of

Miss. Code Ann. § 97-9-115 (1972, as am ended). (Em phasis added.) 3 ¶32. B r i g g s c o n t e n d s t h a t t h e w i t n e s s t a mp e r i n g s t a t u t e c r i m inalizes the a t t e mp t e d inducem ent of f

alse testim ony f

r o m s o m eone t he def

e ndant believes will be called as a witness, not som eone the def endant believes may be called as a witness. B riggs argues that the language of h is indictm ent did not track the language of the statute b ecause it substituted the word may f

or the word will

. Briggs also argues that, because the words may and will have dif f erent m eanings, the substitution was im proper and r endered h is indictm ent f atally def ective. W hile Justice Beam ’s m ajori t y p r o vides m u ch general discussion about the language o f Section 97-9-115, it of f ers scant analy sis o f the issue raised by Briggs: whether there is a ny m eaningf

ul dif f erence between using the word may in p lace of the word will in

an indictm ent f

or witness tam

p ering. W ith respect, t hat issue is of param ount im portance to our resolution of

this case and it is dispositive. Accordingly , I address it as f ollows. ¶33. An indictm ent properly s ets f orth the essential e l e me n t s o f t h e crim e sought to be charged when t he indictm ent’s language tracks (f o llows) the l anguage of the s t atute

. W a r r e n , 187 So. 3d at 622. An indictm ent need not em ploy the e xact descript i v e l a n g u age of the

statute. Gilm er , 955 So. 2d at 837 (quoting Price v. State , 898 S o. 2 d 641, 654 (Miss. 2005)).
But f or an indictm ent suf

f iciently to set f

orth the essential e lem ents of the crim e, it m ust use

3 T h o u g h n o t

raised , I n o te th at, f

o r d o u b le j eo p a rd y p u r

p o s es, B rig g s ’ s in d ictm en t sh o u ld h av e id en tif

i ed th e p erso n o r p e rso n s w h o se f alse t estim o n y B rig g s w as c h arg ed w ith h av in g attem

p ted to in d u ce. S

ee G o fo rth v. S ta te , 7 0 S o . 3 d 1 7 4 , 1 8 9 -9 0 (M iss. 2 0 1 1 ). 1 3“equivalent words of s ubstantially the sam e m e aning” as t he words i n the statute. Id. (quoting

Price , 898 So. 2d at 654); see also Harrington v. State , 54 Miss. 490, 493 (1877) (providing that “it i s essential that eit h e r t h e s a me words, or words of equivalent m e aning, and substantially sy

n ony m ous, should be used”). This C ourt has held that “[ w]here the language used in the indictm ent is s u f f i c i ently s pecif

i c to give notice of the act m ade unlawf ul, and exclusive enough to prevent[ ] its application to other acts, i t is suf f i cient.” Gilm er , 955 So. 2d at 837 (quoting Price , 898 So. 2d at 654). 4 ¶34. Briggs’s indictm ent charged him with attem pting to i nduce a witness or a person he believed m ay be called as a witness to provide him a f alse a l i b i b y me a ns of c o ercion and deceit. The witness tam

p ering statute proscribe s intentionally or knowingly attem pting to induce f alse testim ony f

rom a witness or a p erson the def endant believes will be called a s a witness. O nly if i t could b e s a i d that the words may and will have equivalent m e aning and

are substantially s y

nony m o u s term s could w e f

ind t hat the witness tam

pering c h a r g e w a s ade q u a t e l y w orded. But, as this Court has recognized, the two words have vastly dif f erent

m eanings. A bedrock principle of this Court’s law of statutory i nterpretation i s that the word

may is a perm issive term , and t he word shal l i s mandatory

. T unica Cty. v. Ham

pton Co.
Nat’l Surety LLC

, 27 So. 3d 1128, 1134 (Miss. 2009). May is “used to indicate possibility

or probability .” May , W ebster’s New Collegiate Dictionary (9th e d. 1983). It m eans “m ay

or m ay not.” Kipp Flores Architects, L.L.C. v . M id-Continent Cas. Co. , 852 F .3d 405, 410

4 F o r e x a mp l e , h ere th e ch arg in g lan g u a g e w o u ld h av e b een co m p l ian t w ith th e statu te h ad it u sed th e w o rd “w o u ld ” in stead o f “ w ill.” “Wo u ld , ” in t h e c o n t e x t o f th e statu to ry lan g u ag e, h as su b stan t ially th e sam e m e an in g as “w ill.” 1 4(5th Cir. 2 017). On the other h a nd, will is “used to express inevitability .” W ill , W ebster’s
New Collegiate Dictionary ( 9th ed. 1983). T he words may and will are not substantially
sy nony m ous words of e quivalent me a ning, and they cannot be used interchangeably

. Like shall , will is m andatory

. Thus, a def endant is guilty of witness tam p e r i n g if the def

endant intentionally o r knowingly attem pts t o induce f

alse testim ony f

rom a w itness or a person the de f e n dant believes, inevitably , r egardless of whether such belief is well f ounded or even realistic, will be called as a w itness by the State or by the def e n dant. 5 A per s o n c a n not be guilty o f witness tam

pering f or attem pting to induce f

alse testim ony f

r om som eone he believes may or m ay not be called as a witness. T heref ore, B riggs’s indictm ent was rendered def ective when its draf

ter chose to em

ploy a word that does not appear in the statute and has

a m eaning that is dif

f erent f rom the operative word that does appear in the statute. ¶35. In short, Briggs is accused of try ing to d ispatch a second p erson to talk a third person into providing Briggs a f

alse a libi. For that to be a crim e u nder Section 97-9-115, the statute the State selected as the legal v e hicle f or i ts p rosecution of Briggs, it was necessary that Briggs be proven to have believed that the t hird person will or would b e c alled a s a witness,

not that she m a

y o r m i g h t be called as a witness. Had the indictm ent tracked t he statutory langu a ge, the State could have undertaken to a dduce circum stantial evidence that Briggs
him self i ntended to call the third person as a witness, t hus believing the person will or would

5 I n o te t h at B rig g s’s in d ictm en t ch arg ed th at h e in ten tio n ally o r k n o w in g ly attem p ted to “ in d u ce a w itn ess o r a p e rso n h e b e liev ed m ay b e called a s a w i tn ess a g a in st h im .” T h u s, th e S tate im

p o sed u p o n itself th e o b lig atio n o f p ro v in g so m eth in g n o t in clu d ed in th e statu te: th at B rig g s b eliev e d th e p erso n w o u ld b e called to t estif y ag ain st h im b y t h e S tate, n o t b y th e d ef en se. L ee v. S

ta te , 9 4 4 S o . 2 d 3 5 , 3 8 -3 9 (M iss. 2 0 0 6 ) (citin g R ich m o n d v. S ta te , 7 5 1 S o . 2 d 1 0 3 8 , 1 0 4 6 (M iss. 1 9 9 9 )). 1 5be called as a witness. The statute does not specif y or require any particular basis or m eans f or the unlawf

ul inducem ent. B ut Section 9 7-9-115 does require t he State t o p rove that, f or whatever reason, the accused b e l i e v ed, subjectively , that t he target of his attem pted inducem ent will be called a s a witness. Although the def endant’s belief m ay b e i ll f ounded, altogether m isplaced, or com p let e l y wrong, nevertheless, t he statute dem ands that the

ac c u s e d , to be guilty of witness tam p ering, believe that the person he attem pts to induce ultim ately will be called as a witness, either by the def e ndant or by the def

endant’s adversary – the State. 6 ¶36. T h e C o u r t o f Appeals held that, because Briggs requested that those he c o n t a c t e d provide an alibi t o t he investigating au t horities, he essentially was asking t hem to be witnesses at his t rial and to provide f alse testim o ny . The Court of Appeals opined that, under those c ircum stances, Briggs necessarily believed that these p ersons would have been called

as witnesses at his trial. I n essence, the Court of Appeals f ound t hat B riggs was attem pting

to “ create” a f

alse trial w itness. T heref

ore, the Court of Appeals held, it m a de n o dif f erence that the indictm e nt erroneo u s l y substituted may f or w ill

. W ith r espect to m y c olleagues in

6 Ju stice B e am ’s m a

j o rity in terp r ets m y p o sitio n to b e th a t “th e o f f en s e w o u ld n o t b e co n su m m ated u n til th e p u tativ e w itn ess a p p eared at th e o f

f icial p ro c eed in g an d g av e f alse testim o n y .” M aj

. O p . at ¶ 2 2

. With r e s p e c t f o r Ju stice B eam ’s m aj o rity , th e d istin ctio n b etw een m a

y an d w ill is critical n o t b ecau se it m atters w h eth e r th e p erso n f ro m w h o m th e d ef en d a n t attem

p ted to in d u c e f

alse testim o n y ev en tu ally is c alled as a w itn e ss, b u t b ecau se th ere i s a m e an in g f

u l d istin ctio n b etw een th e d ef en d a n t’s h arb o r in g a b elief th at so m eo n e w i ll b e called as a w itn ess a n d h i s h a r b o rin g a b elief th at so m eo n e m a y b e called as a w i t n e s s . I w h o leh earted ly ag ree w ith th e c o n clu s io n o f Ju stice B eam ’s m aj o rity th at th e s t a t u t e can b e v io lated ev en if t h e d ef en d an t’s b elief th at th e p erso n w ill b e called as a w i tn ess is w ro n g o r

m isp laced

.

1 6Justice Beam ’s m ajority , who approve this analy sis, the Co u r t o f Appeals’ r easoning

m istakenly ignores the constitutional requirem ent that an indictm ent m ust set f o rth the essential elem e nts of t he crim e. The C ourt of Appeals’ a pparent belief that Briggs’s conduct could be construed as b eing within the actual statutory language is not determ inative of the adequ a c y o f t h e indictm ent. Because the w itness tam pering count of Briggs’s indictm ent erroneously substituted the word may f or the word will – a word that h as a dif f erent m eaning

– the indictm ent f

ailed to af

f ord Briggs the c ons t i t u t i onally r equired notice of the crim e charged. As Count I I is written, Briggs was given notice of nothing m ore than an accusation that does not am ount to a crim e. The q u e s t i o n of whether the State could have adduced suf f i cient evidence to secure a conviction had the w itness tam pering count p roperly set f orth the essential elem e nts of the c rim e is irrelevant to our resolution of the dilem m a created by poor draf tsm anship. ¶37. Further, I respectf

ully note that Justice Beam ’s m ajority , citing out-of

- state case law,

m is t a k e n l y bases m

uch of its a naly sis on attem pting t o resolve the irrelevant question of whether Section 9 7

- 9 -115 requires an of f icial proceeding to have com m enced prior to the def endant’s attem

pt t o i n duce f

alse testim ony . The statutory l anguage proscribes the

attem pted inducem ent of f

alse testim ony f

rom a person whom the def endant believes will be called as a witness in an of f i cial proceeding. M i s s . C ode Ann. § 97-9-115(a) (Rev. 2014).
W h ether t he statute is violated or not depends on what t he def endant believed at t he tim e of the attem pted inducem ent of f

a lse testim ony , 7 not on whether an o f f icial proceeding actually

7 T h e statu te is v io lated w h en a p erso n in ten tio n ally o r k n o w in g ly attem p ts to in d u ce so m eo n e h e b eliev e s w ill b e called as a w itn ess in an y o f f i cial p ro ceed in g to testif

y f alsely

. 1 7had com m enced

. W ith respect f or those com

prising Justice Beam ’s m ajority , its analy sis obscures the r eal issue in this c ase by f ocusing on whether Sec t i o n 97-9-115 requires an of f icial p r o c e e d ing to have com m enced at the tim e of the attem pted inducem e n t of f

alse testim o ny . ¶38. Because m

y a naly sis rests upon a sim ple com parison of t he language of the indictm ent
to the language of the statute; and, since they are patently at odds with each other, I f ind no need t o com

b the annals of Am erican law f or other j udicial i nterpretations of sim ilar statutes.
I would not hold that t he witness tam pering s tatute requires that an of f icial proceeding m

ust have b egun at the tim e of the a ttem pted inducem ent of f

a lse testim ony . Rather, m y analy sis of the case bef

ore us is b ased upon the i nescap a b l e f a c t t h a t the w ords may and will have dif f erent m eanings; thus, Briggs’s indict me n t f a i led to place him on notice of an essential elem ent of

the crim e. ¶39. I a l s o o b s e r v e t hat the S tate’s prosecutorial e ndeavor would have b een f ar better served if , in draf ting the indictm ent, it sim ply had u tilized the statutory language, i nstead of

attem pting to im

prove on it

. T h e a l t e r native verb s elected by the S tate – may – m aterially deviated f

rom the m eaning of the statut e. M ay s uggests a contingency

. W ill , on the other hand, bespeaks a thing certain – i n this case, a particular belief on the p art of the accused,

even if m i sta k e n . T h e legislature, the sole entity i n our state governm e n t possessed of the authority to se l e c t statutory language, did not choose the w ord may when it draf ted this

M iss. C o d e A n n . § 9 7

- 9 -1 1 5 (a). L o g ically , o n e p e rso n m ay b eliev e, su b j ectiv ely , t h at an o th er w ill b e c alled as a w itn e ss in an o f f icial p r o ceed i n g ev en if n o su ch p ro ceed in g h as b een co m m e n ced o r sch e d u led

. 1 8statute. 8 Even though the prosecutor – a f unctionary in the executive branch of state
governm ent

– d i d c h o o s e the word may , reasoning, perhaps, that this s ubstitution would

m ake the charge easier to prove – the charging language of the indictm ent f e l l short of charging Briggs with a crim e known to Mississippi law. The prosecutor’s innovation upon the statute’s plain language renders the witness tam pering count o f Briggs’s indictm ent wholly im

potent as a crim inal charge. ¶40. Finally , I am com pelled t o underscore t h a t t h i s C o u r t ’ s d i s p o s i tion of this case strongly i m

plicates separation of

powers. Section 97-9-115 appears, in all respects, to be a valid statute. This Court cannot expand a statute’s m eaning bey ond its plain, unam biguous language. Green v

. State , 183 So. 3d 28, 3 3 ( M i ss. 2 016). Even if Section 9 7-9-115 were

am biguous, because it is a penal statute, we would b e c o nstrained to construe it strictly against the State. Id. at 34. A p r o s e c u t o r , as a m em ber of the executive branch, has no authority to expand the statutory def inition o f a c rim e by substituting words he or she thinks would b e m ore expedient to securing a conviction. T he grand jurors who v o t e d t o indict Briggs f or witness tam

p ering were not well served by s uch creativity

. Only the legislature is

em powered to am end a statute; neither the executive n or the judicial branch of our
governm ent m ay do so. To approve the executive b ranch’s attem pted statutory am endm ent,

a s J u s t i c e Beam ’ s m ajority does, is a reckless plunge into judicial activism in which I respectf ully decline to participate.

8 In terestin g ly , in th e r ecen t am en d m en t o f th e w itn e s s t am p erin g s tatu te, th e leg islatu r e d i d n o t alter i ts u se o f th e o p e r ativ e w o rd w ill

. N eith er sh o u ld w e, a s it is n o t w i th in th is C o u rt’s au th o rity so to d o . 1 9¶41. Because Briggs’s indictm ent m isstated an essential elem ent of the crim e o f witness

tam pering by substituting the word may f or the word will , his i n d i ctm ent f or the witness

tam pering count was f

a tally def ective. Theref

ore, Brigg s w a s d e p r ived of his f ederal and

state c onstitutional rights t o notice of the charge against him

. I w o uld af f irm his conviction of robbery , reverse a nd render his conviction f or witness tam

pering, and dism i ss the witness

tam pering count of

his indictm ent. DICKINSON, P.J., KING AND COLEMAN, JJ., JOIN THIS OPINION.

2 0