IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2015-KA-00016-COA TREVIOUN LAMONT CORNELIUS BRIGGS A/K/A T.L. BRIGGS A/K/A T.L. CORNELIUS BRIGGS A/K/A TREVIOUS LAMONT CORNELI BRIGGS A/K/A TREVIOUN LAMOUNT CORNELIUS BRIGGS A/K/A TREVIOUS BRIGGS A/K/A TREVIOUN L.C. BRIGGS A/K/A TREVIOUN BRIGGS APPELLANT

v. STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 09/29/2014 TRIAL JUDGE: HON. JOHN HUEY EMFINGER COURT FROM W HICH APPEALED: MADISON COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: JUSTIN T. COOK ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JEFFREY A. KLINGFUSS DISTRICT ATTORNEY: MICHAEL GUEST NATURE OF THE CASE: CRIMINAL - FELONY TRIAL COURT DISPOSITION: CONVICTED OF COUNT I, ROBBERY, AND COUNT II, TAMPERING W ITH A W I TNESS, AND SENTENCED TO FIFTEEN YEARS ON COUNT I AND TW O YEARS ON COUNT II, W ITH THE SENTENCES TO RUN CONSECUTIVELY, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS DISPOSITION: AFFIRMED - 05/24/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE LEE, C.J., BARNES AND ISHEE, JJ. ISHEE, J., FOR THE COURT: ¶1. In 2 013, a w o m an w as attacked in the parking lot of Northpark Mall in Ridgeland,Mississippi, and her shopping bags were stolen. The assailant was identif ied as a b lack m ale wearing a red-colored sweatshirt. Later the sam e evening, authorities apprehended Trevioun Briggs af ter he a t t e mp t e d t o r eturn som e of the stolen i tem s t o t he stores f rom which they

were p urchased in the m all. W hen authorities s earched Briggs’s vehicle, they discovered the

rem ainder of t he stolen i tem s. Briggs was arrested and tried in the Madison County Circuit
Court f or robbery and t am

pering w ith a witness. He elected to represent him self and allow a public def

ender to assist in his representation. The jury convicted Briggs of both counts.
T h e c i r c uit court then s entenced Briggs to f if teen y ears f

or robbery and two y ears f o r
tam pering with a witness, all in the custody of the Missis s i p p i Departm ent of Corrections (MDOC), with the sentences to run consecutively

. Aggrieved, Briggs now appeals. Finding no error, we af

f irm

. S TATEMENT OF FACTS ¶2. In Decem

ber 2013, a wom an was walking through the parking lot of the m all carry ing her two-y ear-old son and several shoppi n g b ags. As the wom an opened her car door and placed t he packages inside, a m an cam e up f rom b ehind and hit her in t he h ead. The wom an dropped her son and collapsed o nto the p avem ent. The m an s tole the shopping bags and ran
away . ¶3. Authorities arrived a t the scene, and the wom an identif ied her attacker as a black m ale wearing “a reddish colored sweater.” Shortly thereaf ter, police and m all security were alerted by one of t he stores inside the m a ll that a m an was attem pting t o return several of the stolen item s in question. Briggs was arrested as he attem p ted to obtain a ref

und f or one of

2the stolen item s. Af t er he was apprehended, the other stolen item s were f ound in Briggs’s vehicle, along with an o range-colored sweater. In addition to being identif ied by m all store clerks, t he m all security vide o s a l s o s howed Briggs inside the m all with the victim ’s packages as he entered various stores in attem pts to return the stolen goods f or cash. ¶4. B r i ggs was charged with r obbery , and placed in the Madison County J a i l

. Wh i l e incarcerated, B riggs m ade num erous phone calls. Several of t he phone c a lls were recorded. The recordings showed B r i g g s a s king f or individuals to provide him with a n alibi f or the tim es d uring which h e was not seen on the m a ll v ideo. Accordingly , Briggs w as also charged with witness tam

pering. ¶5. The cas e w e n t t o t r i a l , a n d B r i g g s e l e c t e d t o use h y brid c ounsel wherein he

r epresented him self with help f rom appointed c ounsel. At the close o f t he trial, t h e j u r y convicted Briggs on both count s . H e w a s sentenced to f if teen y ears f

o r robbery and two
y ears f or witness tam

pering, with the sentences to run consecutively , all in the custody of the
MDOC. On appeal, Briggs asserts the f ollowing: (1) the circuit court erred by not properly instructing the j ury regard i n g the case being circum s tantial; (2) his counsel was constitutionally inef

f ective f o r f ailing to request a proper circum sta n t i a l -evidence jury instruction; (3) the indictm ent f or w itness tam

pering was f

lawed; ( 4 ) t h e evidence was insuf f icient to c onvict h i m o f witness tam pering; and ( 5) the two charges are subject to reversal f or retroactive m isjoinder.
DISCUSSION
I. Circum stantial Evidence

3¶6. Briggs presents several argum ents regarding his claim that his case was based solely

o n c i r c u m stantial evidence. He asserts that both t he circuit court and his counsel err e d b y f ailing to provide a proper circum s tantial-evidence jury i nstruction. The record ref lects that the circuit court judge, unprom p ted, stated to Briggs and his appointed counsel outside the
presence of the jury while d iscussing prof f ered jury i nstructions that, in his opinion, Briggs’s

case was “non-circum stantial.” H e then asked Briggs and his counsel if they were requesting “any thing on the r ecord” d isputing the circuit co u r t j udge’s o pinion. B oth Briggs and his attorney specif

ically stated t hey did not. Likewise, the issue was not raised in a ny posttrial

m otions. Nothing f

urther was m entioned regarding t he i ssue of circum stantial evidence until Briggs’s instant appeal. ¶7. The M ississippi Suprem e Court has repeatedly held: “It i s e lem ental t hat errors cannot be raised in this Court f

or the f irst tim e on appeal. A trial judge cannot b e put in error on a

m atter which was not presented to him f or decision.” Patterson v
. State , 594 So. 2d 606, 609 (Miss. 1992) ( citations om itted). Moreover, we have held that “ it rem ains i ncum bent upon the def e n dant to request [ a c ircum stantial-evidence] instruction. A trial court is not required
to sua sponte [ give] s uch an i nstruction.” T urner v. State , 945 S o. 2d 992, 999 (¶23) (Miss.
Ct. App. 2007) (citations om itted). Accordingly , we cannot f ault the circuit court judge f or not presenting the jury

with a circum s tantial-evidence instruction. ¶8. Wi t h r e s p e c t t o B riggs’s claim of inef f ective a ssistance of counsel regarding t h e circum stantial-evidence instruction, we have previously noted:
It is unusual f

or th is Court to consider a claim of inef f ective assistance of counsel w hen the c laim is m ade on direct appeal. This i s because we are
4lim ited to t he trial[ -]court r ecord in our review of the claim and there is usually

insuf f icient evidence within the record to evaluate the claim

. The Mississippi Suprem e C ourt has s tated that, where the record cannot s upport an inef f ective[ -]assistance[ -]of

[ -]counsel claim on d irect appeal, t he appropriate conclusion i s t o deny relief , preserving the def

endant' s right to argue the sam e issue through a [ postconviction-relief m otion.] Aguilar v. State , 847 So. 2d 871, 878 ( ¶17) (Miss. Ct. App. 2002) (citing Read v. State , 430
So. 2d 832, 837 ( Miss. 1983) ; Edwards v. State , 797 So. 2d 1049, 1060 (¶30) (Miss. Ct. App. 2001)). L ikewise, nothing was brought bef ore the circuit court with respect to inef fectiveassistanc e - o f

- c o u n sel claim s. As such, we decline to review such c laim s on this direct appeal.
II. Witness Tam p ering ¶9. Briggs next asserts that he was im pro p e r l y indicted f

o r witness tam

pering, that the jury instruction regarding witness t a mp e ring was im properly given, and that the State f ailed to provide suf

f icient evidence that he was guilty of witness tam

pering. ¶10. First, Briggs claim s that t he wording of his indictm e nt im properly charged him

with witness tam

pering. The statute f

or witness tam

pering reads:
A p erson com m its the crim e of tam pering w i th a witness if he intentionally or knowingly attem

pts to i nduce a witness or a p erson he believes will be called as a witness in any of

f ic i a l p r oceeding to: (a) Testif y f alsely or unlawf

ully wit h h o l d testim ony ; or ( b) Absent him s elf f rom any of

f icial proceeding to which he has been legally sum m oned.
M i s s . Code Ann. § 97-9-115 (Rev. 2014). Briggs’s i ndictm ent read, in pertinent part: “[ Briggs] did willf

u l ly , f eloniously , intentionally [ , ] a nd knowingly attem p t to induce a witness or a person he b elieved m ay be called as a witness against him [ to provide him with

a f alse alibi.]” ( Em

phas i s a d d e d )

. The indictm ent went on to m a k e specif ic r ef erence to

5section 97-9-115.

¶11. “The prim ary purpose of an indictm e nt i s to give the def e ndant f air notice of the crim e charged. It m

ust contain the essential f acts constituting the of

f ense charged and shall f

ully notif y the def endant of the nature and cause o f the accusation.” Faulkner v. State , 109 So. 3d 1 42, 146 (¶13) (Miss. Ct. App. 2013) ( i n t e rnal quotations and citations om itted). An indictm ent m

ust also contain th e “ e s s ential elem ents of the of f ense charged.” Gilmer v. State , 955 So. 2d 829, 836 (¶24) (Miss. 2007) (citation om itted). ¶12. Here, Briggs ques t i ons the indictm ent’s use of the word “m ay ” instead of the word “will.” Likewise, Briggs assigns e rror to the jury instruction’s wording, which stated Briggs

c o n t a c t e d a person “he believed would or could be called as a witness.” W e f ind t h e s e
argum ents to be m oot. ¶13. The record r e f

lects that B riggs contacted a wom an and asked her to f abricate an alibi
f or him during the tim es in which he was not seen on the m all video. The f act that he was requesting that som eone provide h im with an alibi would m ost certainly m a ke that person a witness in the case. Brigg s w a s e s s entially asking the person to b e a witness. Hence, it

m akes no dif

f erence whether the i ndictm ent read “will” or “ m ay ” or t he jury instruction read “will” or “would” since t he f actual basis surrounding the charge, a nd described in the indictm ent, dictated that Briggs thought, and in f act hoped, that the wom an he contacted would be called a s a witness t o provide Briggs with the a libi he sought. T his issue is without

m erit. ¶14. Next, Briggs asserts that t h e S t a t e f a i led to p rove that he com m itted the crim e of

6tam

pering with a witness. O ne transcript of the r ecordings, which w as o f f ered to the jury f

or consideration, read as f

ollows, in pertinent part: Briggs: [ The detective on the case] steady t ry i ng to link the stuf f to m e now, but what I need is an alibi. I need som e body to say where I was. W hat tim e did Sienna pay her cell phone bill?
Fem ale: 4 or 5. It was getting dark. Briggs: Alright, but what I need y ’ all to say . . . . Alright, but see I told

him that was th e only reason I cam e to the m all was to pay the cell phone bill, know what I’m say ing?
Fem ale: You think t hey going to go back a nd look at the records and see? Briggs: He did and he told m e it was around 4

. . . . See I can’t tell them

nothing because he was telling me i t was a r ound 4, b ut all this s*** went down.
Fem ale: Tell them

y ou was browsing the m all I guess. Briggs: Yeah, I know. That’s when he seen m e on video browsing the

m a ll. See t hat arm ed robbery stuf f he can’t even like, h e can’t even, the cam eras can’t even see m e. H e d on’t even know it’s m e . He j u s t seen the im age of a dude, but the thing is m an, I need an a libi. I need y ou to, um , call d own to, um , Jackson and ask to t alk to, um , a detective on the narcotics dep a r t me n t

. I think his nam e is Detective Wa y l o n . He real cool, know what I’m say ing? I told y ou he wanted m e to tell on som ebody

. That night he h ad c alled m e about d oing it, but I w as like “No. I’ll hit y ou back af

t er I f inish cutting hair.”

. . . I never hit him back and that was around the s am e tim e I was at the m all. So, what I need y ou to do, just to m ake sure, call them a n d b e like

. . . know what I’m say ing? Just t alk to him like “He need help, m an. He didn’t do it.” Know what I’m say ing?

. . . Fem ale: His nam e detective what? Briggs: D e t ective W ay lon.

. . . I need som ebody to w rite a stat e me n t

say ing that I was w ith them knowi n g that will clear up every thing. I was with them

f rom . . . around 8:30.

7¶15. A transcript f r om a dif f erent call reads: Briggs: Call to Flowood PD and talk to a detective on T.L. B riggs’s c ase

and let t h e m know. T ell them t hat I was w ith y ou, know what I’m say ing? And y ou ain’t see m e f or t he rest of the day out. I had just w ent to the m all. Just tell them he couldn’t did nothing like that or whatever. Hope it going to blow over because like I said, they

ain’t got no proof

. Fem ale: The o nly thing I’m worried about is w h at if t hey got an ey e

witness. Briggs: They don’t. I’m telling y o u, the only reason t h e y got m e

because I went in JC Penny f o r that last thing.

. . . I went in there f or that last thing and her credit c a rd n um b er w as s *** a nd, um , that’s how they got m e. . . . Wh a t I’m try ing to tell y ou i s y ’ all be m y alibi on the s***. Y ’ a l l just tell them I w as with y ’all, know w hat I’m say ing? “There is no way he could’ve d id this. He was at the school w ith m e. I g o to Tougaloo and one of the boy s up there nam e Nick a sk to ride with him t o t h e s t o re,” or whatever. And t hat’s the o nly thing, y ou know, and that was the last tim e y ou hear f

rom m e . I couldn’t have robbed them , know what I’m say ing? T alk to them

. T ell them this here in Madison County

. Other than that, m an, . . . I’m gonna be a sitting m a n. ¶16. Yet another transcript f rom a separate phone c a ll to a f em ale shows B riggs stating the
f ollowing: Talk to the attorney and give him t he alibi I was w ith y ’all. “W e went up there to p a y the phone b i ll

. . . and t hat was it. And that was a round 4

. . . . But, shoot h e couldn’t have robbed nobody because he was with u s.” Know what I’m say ing? W e need to do this. ¶17. On appeal, Briggs asserts that the recordings do not show that he was attem pting to have s om eone l ie f

or him

– only to request a truthf u l alibi. T his argum ent f ails. The transcript shows Briggs asking f or som eone to p rovide him with vary ing alibis. At one point, he asks the f

em ale t o state that he was with her at school. Im m e diately th e r e a f t e r , he asks

8the f

e m a le to im

p licate that som eone else was at the m all with him

. Later, he asks the f em ale
to state t hat she a ccom

p anied him to the m all to pay a c ell phone bill but that he l ef t with her
im m ediately thereaf

ter. I t i s quite evident that Briggs was attem pting to procure a f

alse alibi.
W e f ind t he evidence bef

ore the jury w as m ore t han s uf f icient to support the c onviction f or witness tam

pering. This issue is m eritless.
III. Retroactive Misjoinder ¶18. Finally , Briggs a sserts that because he was im properly charged with a n d convicted of witness t am

pering, the r obbery c harge should be reversed on the ground o f r etroactive

m isjoinder. However, having f ound that Briggs was, in f act, properly charged wit h and convicted of witness t am pering, Briggs ’ s a rgum ent of r etroactive m isjoinder f ails. The charges of robbery and witness tam pering were p roperly joined and adjudicated. This issue is without m erit. ¶19. T H E J U D G M E N T OF THE MADISON COUNTY CIRCU I T C O U R T O F CONVICTION OF COUNT I, ROBBERY, AND COUNT II, TAMPERING W ITH A WITNESS, AND SE N T E N C E O F FIFTEEN YEARS ON COUNT I AND TWO YEARS ON COUNT II, W ITH THE SENTENCES T O RUN C ONSECUTIVELY, ALL IN THE C USTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS A FFIRMED. ALL COSTS OF THIS A PPEAL A RE ASSESSED TO MADISON COUNTY.
L E E, C .J., GRIFFIS, P.J., B ARNES, CARLTON, FAIR, JAMES, W ILSON AND GREENLEE, JJ., CONCUR. IRVI N G , P .J., CONCURS IN P ART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION.

9