author: LAMAR, Justice, RANDOLPH, Justice, CHANDLER, Justice,

text:
    Demarious Latwan BANYARD a/k/a Lil Murray a/k/a Mur-Mur v. STATE of Mississippi.
    No. 2006-CT-01843-SCT.
    Supreme Court of Mississippi.
    Sept. 16, 2010.
    Rehearing Denied Dec. 2, 2010.

      Robert B. McDuff, Bryan A. Stevenson, attorneys for appellant.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
   ON WRIT OF CERTIORARI

LAMAR, Justice,

for the Court:

¶ 1. Demarious Banyard was convicted of capital murder and sentenced to life in prison without the possibility of parole. Banyard appealed, claiming, among other things, that the trial court erred when it refused his proffered duress instruction. Finding that Banyard was entitled to have an instruction given the jury which presented his theory of the case, we reverse and remand for a new trial.

FACTS AND PROCEDURAL HISTORY

¶ 2. Demarious Banyard and Dennis Ragsdale were indicted by a Hinds County grand jury for the capital murder of Robin Ballard, a killing which occurred during the commission of a robbery. Ban-yard, who was thirteen years old at the time of the crime, filed a motion requesting that his case be transferred to youth court, which the trial court denied. Ban-yard subsequently filed a motion to sever, which the trial court granted.

¶ 3. At trial, witnesses testified that, on the night of the murder, a group of teenagers was playing basketball at an apartment complex in Jackson. Among the players were nineteen-year-old Dennis Ragsdale and thirteen-year-old Demarious Banyard. According to Traven Kyser, one of the other players, someone came around the corner and said that the “pizza man is out there, let’s go rob him.” At that point, Ragsdale went to his jeep, got a gun, and came back to the group. Kyser testified that Ragsdale cocked the gun and then took the clip out, but that Banyard did not see him do it. Ragsdale handed the gun to Banyard and said “let’s go rob the pizza man.” At that point, Kyser testified, Ragsdale and Banyard began walking up to the apartment gate. When asked if he thought Banyard could have “changed his mind if he wanted to,” Kyser responded, “Not really, no.”

¶ 4. Adrian Addison, a resident of the apartment complex, testified that he had pulled up to the apartment gate to leave, and that a black Malibu (the pizza delivery man’s car) was two cars ahead of him. He noticed that there were “two guys” standing on the driver’s side of the Malibu. After a couple of seconds, Addison heard a gunshot, and then witnessed the “two guys” run past his vehicle back into the apartment complex. When the black Malibu did not pull out of the complex, Addison began blowing his horn. After the Malibu still did not move, Addison got out of his car to investigate. When he got to the driver’s side window, he saw that the driver, later identified as Robin Ballard, had been shot in the neck. He put the car in park so that it would not roll into the street and yelled for someone to call an ambulance.

¶ 5. Kent Daniels, one of the first detectives on the scene, testified that he arrived at the Westwick Apartments a little after 6 p.m. the night of the murder. He was able to identify the victim as twenty-five-year-old Robin Ballard. As Daniels was talking to the witnesses and beginning to establish a suspect list, one of the other detectives got a call from Banyard’s mother, who said that Banyard wanted to turn himself in. Daniels interviewed Banyard that same evening, with his mother present. After waiving his Miranda rights, Banyard made a statement, implicating himself and Ragsdale in the shooting.

¶ 6. Banyard took the stand in his own defense. He testified that he was getting ready to take his younger cousin home after the basketball game when Ragsdale came up to him, handed him the gun, and said “let’s go rob the pizza man.” Ban-yard testified that he did not want to rob the pizza man, but that Ragsdale was looking “serious and mean,” and that he was scared of him. Banyard testified that he had met Ragsdale before, and that Rags-dale had “jumped on [him]” the first time they had met. Although Ragsdale had told Banyard that the gun was unloaded, Banyard testified that he was still scared, because he thought Ragsdale would “put the bullets in the gun and shoot [him]” if he didn’t go. They began walking toward the apartment gate, with Ragsdale walking “real close” to Banyard the entire time, saying “go [a]head, come on.” When asked why he did not run as they were getting closer to the car, Banyard again responded that he thought Ragsdale would “catch me, put the bullet in and shoot me.”

¶ 7. When they reached the Malibu, Ragsdale went around to the passenger side and told Banyard to go to the driver’s side. Ragsdale told Ballard to “give [him the] money.” Banyard testified that he “guessed [Ragsdale] couldn’t get the money” because he “came back around” to the driver’s side. As Banyard was handing Ragsdale the gun, his finger “tapped the thing and it went off.” At that point, Ragsdale started laughing and ran off with the gun, and Banyard followed.

¶ 8. At the close of the evidence, defense counsel proffered a duress instruction, which the trial judge denied as an “improper statement of law.” The record is unclear as to what part of the instruction the trial judge deemed to be incorrect. The trial judge then refused defense counsel’s request to submit another duress instruction, stating: “No ma’am. You can argue that but we’ll not have a case of law. You want to put that into instructions what your arguments are going to be and the court is not going to just put in your arguments.” The trial judge opined that the lesser-included-offense instruction of simple murder covered the duress theory, because she later stated:

The lesser included instruction of murder includes those arguments that the defense wants to make regarding duress. But it does not entitle this defendant to a duress instruction because the court has allowed the lesser included offense of murder.... You don’t to get a two-fer [sic]. I allowed the lesser included offense and under the statute you can argue duress, you can argue accident, you can argue misfortune and anything else you want to argue. But I’m not going to give an instruction on that because that’s already included in the defense of the lesser included offense of murder.

¶ 9. The jury found Banyard guilty of capital murder. Banyard appealed, arguing that the trial court erred when it (1) refused any instruction with the lesser offense of manslaughter; (2) refused defense counsel’s duress instruction; and (3) refused to appoint a psychiatrist to aid in his defense. We assigned the case to the Court of Appeals, which affirmed Ban-yard’s conviction and sentence, and we granted certiorari. See Banyard v. State, 47 So.3d 708 (Miss.Ct.App.2009).

¶ 10. While Banyard raises four issues on certiorari, we find the denial of the duress instruction dispositive. We also address Banyard’s claim that the trial court “unconstitutionally shifted the burden of proof’ when it gave a jury instruction that required the jury to “unanimously find beyond a reasonable doubt that the defendant is not guilty” in order to return a verdict of not guilty.

ANALYSIS

I. Whether the trial court improperly denied Banyard’s proffered duress instruction.

¶ 11. “On appellate review of the trial court’s grant or denial of a proposed jury instruction, our primary concern is that ‘the jury was fairly instructed and that each party’s proof-grounded theory of the case was placed before it.’ ” ‘We ask whether the instruction at issue contained a correct statement of law and was warranted by the evidence.” “While a party is entitled to jury instructions that present his theory of the case, this entitlement is limited; the trial court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.”

¶ 12. “A defendant is entitled to have instructions on his theory of the case presented, even though the evidence that supports it is weak, inconsistent, or of doubtful credibility.” “If the defendant presents sufficient evidence in the record to support his theory of the case, he should then be given an instruction on his theory of the case. There needs [sic] not be even a plausible explanation.” “A criminal defendant is entitled to have his jury instructed on all offenses of which an eviden-tiary basis exists in the record, even where the evidence .... arises only in the defendant’s own testimony.”

¶ 13. This Court has held that “where a person reasonably believes that he is in danger of physical harm he may be excused for some conduct which ordinarily would be criminal.” We have approvingly cited the four-part test for duress set forth by the Fifth Circuit Court of Appeals:

(1) the defendant was under an unlawful and present, imminent, and impending threat of such a nature as to induce a well-grounded apprehension of death or serious bodily injury; (2) that he had not recklessly or negligently placed himself in the situation; (3) that he had no reasonable legal alternative to violating the law; (4) that a direct causal relationship may be reasonably anticipated between the criminal action and the avoidance of harm.

¶ 14. Banyard’s theory of the case is that he participated in the robbery under duress (thus lacking the necessary specific intent), and that Ballard was accidentally shot when Banyard was handing Ragsdale the gun. He claims that sufficient evidence was presented at trial to support this theory. Thus, Banyard argues, the trial court erred when it refused his duress instruction, because the refusal effectively disallowed the jury from considering Ban-yard’s theory of the case.

¶ 15. The Court of Appeals agreed with the trial judge’s ruling that the proffered duress instruction was an incorrect statement of law because it included a manslaughter instruction. The Court of Appeals reasoned that, because Banyard had killed Ballard during the course of a robbery, he was not entitled to a manslaughter instruction.

¶ 16. The Court of Appeals also held that there was no evidentiary basis to support Banyard’s proffered duress instruction. Specifically, the Court of Appeals noted that Banyard had the gun in his hand throughout much of the ordeal, and that he “failed to present evidence that he did not have a reasonable opportunity to avoid participating in the crime,” thus negating his duress claim. We address both findings.

Was there evidentiary support for a duress instruction?

¶ 17. A defendant is entitled to have an instruction given to the jury presenting his theory of the case even when “the evidence that supports it is weak, inconsistent, or of doubtful credibility.” After a thorough review of the record, we conclude that Banyard presented sufficient evidence to support his duress theory. Traven Kyser testified that, in his opinion, Banyard could not change his mind once Ragsdale set the events in motion. Ban-yard testified consistently that he did not want to rob the pizza man, but that Rags-dale was looking “serious and mean,” and that he was scared of him. Banyard testified that Ragsdale had “jumped on him” the first time they had met. Although Ragsdale had told Banyard that the gun was unloaded, Banyard testified that he was still scared, because he thought Rags-dale would “put the bullets in the gun and shoot [him]” if he didn’t go. As they walked toward the apartment gate, Rags-dale walked “real close” to Banyard the entire time, saying “go [a]head, come on.” When asked why he did not run as they were getting closer to the car, Banyard again responded that he thought Ragsdale would “catch me, put the bullet in and shoot me.”

¶ 18. The merits of Banyard’s duress claim are for a properly instructed jury to weigh. The jurors are the judges of the credibility of the witnesses, not the appellate courts. We need only decide whether Banyard presented sufficient evidence to meet the minimum threshold necessary to require an instruction on his theory. We find that he did. Thus, we find that it was error to deny Banyard’s duress instruction.

Was the proffered duress instruction an improper statement of law because it included a manslaughter option?

¶ 19. The Court of Appeals held that the duress instruction was an improper statement of law because it included a manslaughter instruction, an option that, it reasoned, Banyard was not entitled to because Ballard was killed during a robbery. Mississippi Code Section 97-8-27 is a manslaughter statute which specifically excepts the killing of an individual during a robbery from being manslaughter. But Banyard’s theory throughout the entire case was that he had committed the robbery under duress. Duress is a valid defense for many crimes, including robbery. Thus, if the jury found that Banyard was indeed acting under duress, he could not be found guilty of the robbery of Ballard, one of the essential elements of the capital-murder charge. Upon that finding, the jury then could proceed to consider whether he was proven guilty of any lesser offenses which the trial court had determined were supported by the record, whether they be murder, manslaughter, or both.

¶ 20. Thus, because we find that Ban-yard presented a sufficient evidentiary basis to support a duress instruction, the inclusion of a manslaughter instruction was not necessarily improper, as he would be entitled to instructions on lesser offenses should the jury find that he had committed the armed robbery under duress.

II. Whether the trial court unconstitutionally shifted the burden of proof.

¶ 21. Although we find that the trial court’s failure to grant Banyard’s proffered duress instruction requires reversal, we briefly address Banyard’s claim that the trial court “unconstitutionally shifted the burden of proof’ when it instructed the jury that in order to find the defendant not guilty, it had to “unanimously find beyond a reasonable doubt that the defendant is not guilty....” The relevant part of Jury Instruction 8, the form of the verdict instruction, stated:

The Court further instructs the Jury that if you unanimously find beyond a reasonable doubt that the Defendant is NOT GUILTY of either “Capital Murder” or “Murder,” then the verdict shall be in the following form, WRITTEN ON A SEPARATE SHEET OF PAPER: “We the Jury [find] the Defendant NOT GUILTY of Capital Murder AND the jury finds the Defendant NOT GUILTY of Murder.”

¶ 22. Obviously, this instruction was erroneous. It is axiomatic that the burden of proof never shifts to a defendant during a criminal trial, and there is no requirement that the defendant be found not guilty beyond a reasonable doubt. As this Court stated in Pittman v. State: “[T]he prosecution always has the burden of proving the guilt of [the] accused beyond a reasonable doubt, accused never has the burden of satisfying the jury of his innocence, or to disprove facts necessary to establish the offense charged....”

¶ 23. The State argues that the jury instructions, read as a whole, properly instructed the jury. Specifically, it argues that Jury Instruction 5, a general burden-of-proof instruction, “cured” the defect in Jury Instruction 8. We disagree. We have said that the rule which requires that all instructions should be read together “does not cure an erroneous instruction in conflict with a proper instruction on a vital issue where the proper instruction does not modify or clarify the erroneous instruction.”

The giving of an erroneous instruction containing reversible error cannot be cured by the giving of an inconsistent and correct instruction.... A material error in an instruction, complete in itself, is not cured by a correct statement of law in another instruction, for the jury cannot know which instruction is correct and the court cannot know which instruction influenced the jury.

¶ 24. Thus, we find that the portion of Jury Instruction 8 which required the jury to “unanimously find beyond a reasonable doubt that the defendant is not guilty” was improper and could not have been cured by other correct, yet conflicting, instructions, as we “cannot know which instruction influenced the jury.”

CONCLUSION

¶ 25. We hold that the trial court erred when it refused Banyard’s proffered duress instruction. We reverse the judgments of the Hinds County Circuit Court and the Court of Appeals and remand this case for a new trial.

¶ 26. REVERSED AND REMANDED.

WALLER, C.J., CARLSON AND GRAVES, P.JJ., DICKINSON, KITCHENS, AND PIERCE, JJ., CONCUR. RANDOLPH, J., CONCURS IN PART AND IN RESULT WITH SEPARATE WRITTEN OPINION. CHANDLER, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED IN PART BY RANDOLPH, J.

RANDOLPH, Justice,

concurring in part and in result:

¶ 27. I concur with the majority’s conclusion on Issue II. Without question, the trial court unconstitutionally shifted the burden of proof by instructing the jurors that, in order to acquit Banyard, they must find him not guilty “beyond a reasonable doubt.” Regardless of when the issue was raised, this plain error requires reversal for a new trial.

¶ 28. Since this case must be remanded for a new trial, we need not decide whether or not duress as to robbery was established. Duress may be an issue at trial upon remand, dependent on the evidence adduced. I do agree with Justice Chandler, based on the evidence presently before us, that Banyard was not entitled to a duress instruction, but that determination is irrelevant to the same issue on retrial. As we do not know what proof will be presented, we cannot know what finding may be appropriate. In my humble opinion, the majority unnecessarily addressed duress. Therefore, I would reverse and remand solely on the constitutional error, Issue II.

CHANDLER, Justice,

dissenting:

¶ 29. Because I believe that the trial court properly refused to give Banyard a duress instruction, I respectfully dissent. This Court’s longstanding precedent has been that duress is not a defense to murder. See Wilson v. State, 390 So.2d 575, 576 n. 1 (Miss.1980); Watson v. State, 212 Miss. 788, 55 So.2d 441 (1951); Taylor v. State, 158 Miss. 505, 130 So. 502 (1930). Application of this principle logically has been applied to capital murder cases. See Ruffin v. State, 992 So.2d 1165 (Miss.2008); West v. State, 725 So.2d 872 (Miss.1998) (overruled on other grounds); Fuqua v. State, 938 So.2d 277 (Miss.Ct.App.2006). Additionally, I write to address the majority’s concern about jury instruction 8.

I.

¶ 30. This Court reads jury instructions as a whole and not in isolation. Walker v. State, 913 So.2d 198, 234 (Miss.2005). When the instructions are read as a whole, “if the instructions fairly announce the law of the case and create no injustice[,]” the appellate court will find no reversible error. Montana v. State, 822 So.2d 954, 958 (Miss.2002). “A defendant is entitled to jury instructions on his theory of the case whenever there is evidence that would support a jury’s finding on that theory.” Id. at 962. However, a trial court may refuse a jury instruction when it is an incorrect statement of law, fairly covered in other instructions, or has no foundation in the evidence. Ruffin v. State, 992 So.2d 1165, 1176 (Miss.2008); Poole v. State, 826 So.2d 1222, 1230 (Miss.2002) (citing Smith v. State, 802 So.2d 82, 88 (Miss.2001)). Reversal is not warranted when instructions, taken as a whole, fairly, though not perfectly, announce the law. Rushing v. State, 911 So.2d 526, 537 (Miss.2005).

II.

¶ 31. This Court has upheld a trial court’s refusal to grant duress instructions in capital murder cases. In Ruffin, Ruffin was charged and convicted of robbery and capital murder with the underlying felony of kidnapping. Ruffin, 992 So.2d at 1169. The trial court allowed a duress instruction for the robbery charge because no eyewitnesses refuted Ruffin’s claim of duress as to the robbery. Id. at 1177. But the jury also received a jury instruction stating that duress is not a defense to capital murder. Id. Ruffin argued that an additional duress instruction should have been given for kidnapping — the underlying felony in the capital murder charge against him — because the evidence demonstrated that his actions resulted from his fear of being killed by another individual. Id.

¶ 32. This Court determined that Ruffin failed to support his theory of duress with sufficient evidence. Ruffin, 992 So.2d at 1177. This Court acknowledged that duress constitutes a defense to most crimes, such as kidnapping, with homicide the exception to the rule. Id. at 1178 (citations omitted). Notwithstanding the acknowledgment that homicide is an exception to a duress defense, the Court analyzed the issue of duress and whether Ruffin proved a “present, imminent, and impending threat of such a nature as to induce a well-grounded apprehension of death or serious bodily injury.” Id. (citing West, 725 So.2d at 890 n. 7). This Court found that not only was this case weaker than West, discussed below, but also, no rational juror could have found that Ruffin acted under duress, especially since he had the only gun in his possession on more than one occasion. Id. Additionally, the Court determined that Ruffin had reasonable alternatives to committing the crime. Id. (citing West, 725 So.2d at 887-90).

¶ 33. This Court has addressed a similar fact pattern in another capital murder trial with alleged duress contributing to the robbery and subsequent murder, as in Banyard’s case. In West, a defendant was convicted of capital murder for the murder of a convenience store clerk in the course of a robbery. West, 725 So.2d at 877. On appeal, West asserted another claim similar to Banyard’s: the trial court erred by refusing a simple murder or a manslaughter instruction where the armed robbery occurred under duress. Id. at 887. Unlike Banyard, the trial court granted a duress instruction to West. Id. at 890. On appeal, however, this Court found that “no rational juror could have found West to have been acting under common-law duress.” Id. at 890. In other words, West was not entitled to the duress instruction. The Court determined that West’s theory of duress was unsubstantiated by the evidence. Id. Notwithstanding the fact that West received the erroneous duress instruction on the robbery charge, this Court found that West was not entitled to a duress instruction for the armed robbery, the underlying felony which elevated the charge of murder to capital murder.

¶ 34. Likewise, in Fuqua, the defendant was charged with capital murder, with the underlying felony of sexual battery, and a separate arson charge. Fuqua, 938 So.2d at 280-81. Again, similar to Banyard, Fu-qua argued that the trial court erred by refusing to grant a jury instruction on duress. Id. at 283. Fuqua claimed that Albert Pitts killed the victim and threatened Fuqua with death if he told anyone about the murder. Id. at 280. The Court of Appeals affirmed the trial court’s denial of the instruction, finding that “[a] person is not authorized to take the life of another person at the command of a third person, whether he is in fear of such person or not....” Id. at 283 (quoting Wilson v. State, 390 So.2d 575, 576 (Miss.1980)). And assuming that Fuqua had a valid point, the Court of Appeals determined that “no evidence at trial [supported] a finding that Fuqua’s death or serious bodily injury was imminent, or that Fuqua was not negligent by placing himself in such a situation.” Id.

¶35. Banyard was not entitled to a duress instruction on the underlying felony of robbery, because he too failed to provide any evidence that supported “present, imminent, and impending threat of such a nature as to induce a well-grounded apprehension of death or serious bodily injury.” Ruffin, 992 So.2d at 1178 (citing West, 725 So.2d at 890 n. 7); Fuqua, 938 So.2d at 283. Similar to Ruffin and West, Banyard had sole possession of the gun as he walked toward the driver’s side of Robin Ballard’s vehicle. Ragsdale, the alleged threatener, thereafter went to the opposite side of the victim’s vehicle from Banyard. When the victim did not hand over his money, Ragsdale went to the driver’s side of the car, and Banyard claims that the gun fired when he was giving it to Rags-dale.

¶ 36. Banyard stated that he had been afraid of Ragsdale due to a previous altercation earlier in the year. While Banyard stated that he feared that Ragsdale would shoot him, Ragsdale never verbally threatened him. Instead, Banyard described Ragsdale as “serious” and “mean.” Further, there was no evidence that Ragsdale possessed any other weapon. Therefore, Banyard failed to prove “any present, imminent, and impending threat of such a nature as to induce a well-grounded apprehension of death or serious bodily injury.” Because Banyard had possession of the only known gun, he had reasonable alternative means other than shooting the victim.

III.

¶37. While the majority determined that the issue of duress was dispositive to this appeal, it also addressed whether the language in jury instruction 8 unconstitutionally shifted the burden of proof to the defendant. Reading the entire instruction in context coupled with jury instructions 5 and 7, instruction 8 did not shift the burden of proof, and the instructions, taken as a whole, adequately instructed the jury on the charges against Banyard. Jury instruction 8, in its entirety, stated:

CAPITAL MURDER
The Court instructs the Jury, that in order for you to convict the Defendant of the crime of Capital Murder, you must unanimously find beyond a reasonable doubt from the evidence in this case that the Defendant, Demarious Banyard, on or about February 24, 2003, wilfully, unlawfully, and feloniously did then and there feloniously take or attempt to take the personal property of Robin Ballard, from the presence of Robin Ballard, against the will of the said Robin Ballard, by violence to his person or by putting Robin Ballard, in fear of immediate injury to his person by the exhibition of a deadly weapon, to-wit: a gun. The commission of such offense is defined as Armed Robbery.
If the jury first unanimously finds beyond a reasonable doubt that Defendant committed the crime of Armed Robbery or Attempted Armed Robbery, then the Juiy must also next find, beyond a reasonable doubt, that on said date, while engaged in the commission of the aforesaid crime of Armed Robbery or [A]t-tempted Armed Robbery, that the Defendant Demarious Banyard, wilfully, unlawfully and feloniously, without authority of law, by any means or by any manner, not in necessary self-defense, did then and there kill Robin Ballard, a human being.
In the event that the Jury unanimously finds beyond a reasonable doubt and to the exclusion of any reasonable hypothesis consistent with innocence, from the evidence in this case, that the Defendant, Demarious Banyard, committed both the Armed Robbery and the Killing of Robin Ballard, as defined in this instruction, then the Defendant is Guilty of “Capital Murder”, and the form of your verdict should be in the following form, WRITTEN ON A SEPARATE SHEET OF PAPER.
“We, the Jury, find the Defendant Guilty of Capital Murder.”
MURDER
The Court further instructs the Jury that if you DO NOT unanimously find the Defendant, Demarious Banyard, is Guilty of Capital Murder, you may continue your deliberations and determine whether the Defendant is guilty of the lesser included offense of “Murder.”
“Murder” is defined as the killing of a human being without the authority of law by any means or in any manner when done with deliberate design to effect the death of the person killed, or of any human being. Therefore, if you DO NOT unanimously find beyond a reasonable doubt that the Defendant is guilty of Capital Murder, but you DO find, beyond a reasonable doubt, that the Defendant, Demarious Banyard, alone or with another, on or about February 24, 2003, did unlawfully and feloniously, without authority of law and not in necessary self-defense, kill Robin Ballard, a human being, with deliberate design to effect the death of Robin Ballard, then the Defendant, Demarious Banyard, is guilty of Murder.
In the event the Jury unanimously finds beyond a reasonable doubt from the evidence in this case and to the exclusion of any reasonable hypothesis consistent with the innocence, that the Defendant committed Murder as defined in this instruction, then and in that event, the form of your verdict should be in the following form, WRITTEN ON A SEPARATE SHEET OF PAPER:
“We the Jury, find the Defendant Guilty of Murder.”
NOT GUILTY
The Court further instructs the Jury that if you unanimously find beyond a reasonable doubt the Defendant is NOT GUILTY of either “Capital Murder” or “Murder”, then the verdict shall be in the following form, WRITTEN ON A SEPARATE SHEET OF PAPER:
“We the Jury finds [sic] the Defendant NOT GUILTY of Capital Murder AND the jury finds the Defendant NOT GUILTY of Murder.”
PLEASE NOTIFY THE BAILIFF WHEN YOU HAVE REACHED YOUR UNANIMOUS VERDICT.

¶ 38. At issue is the language of the last portion of the instruction under the “NOT GUILTY” section, which in part states: “The Court further instructs the Jury that if you unanimously find beyond a reasonable doubt the Defendant is NOT GUILTY of either “Capital Murder” or “Murder”, then the verdict shall be in the following form.... ” (Emphasis added.) This instruction provided the elements for capital murder and murder and contained a form of the verdict. Within the first portion of the instruction pertaining to capital murder, the jury had the elements of armed robbery and murder and unanimously had to find beyond a reasonable doubt and to the exclusion of any reasonable hypothesis consistent with innocence, from the evidence in the case, that Banyard committed both armed robbery and the killing of Ballard. If the jury did not find that the evidence met these elements, then the jury was instructed on the elements of murder. Only if the jury found that the evidence failed to meet either capital murder or murder, was the jury instructed on the form of the “not-guilty” verdict. The instruction clearly set out the options of potential findings of either capital murder, murder, or not guilty. Thus, if the jury found that Banyard was guilty of capital murder, as it did, then the jury had no need to continue with the instruction. But apart from that, the instruction clearly stated that only if the elements for each crime were met could the jury find the defendant guilty of capital murder or, alternately, murder.

¶ 39. Additionally, the jury had instruction 5, which explicitly instructed the jury that a person charged with a crime is presumed innocent, that the State has the burden of proving a defendant’s guilt of each element of a crime beyond a reasonable doubt, and that a defendant is not required to prove his innocence. Jury instruction 5 stated:

The law presumes every person charged with the commission of a crime to be innocent. This presumption places upon the State the burden of proving the Defendant guilty of every material element of the crime with which he is charged. Before you can return a verdict of guilty, the State must prove to your satisfaction beyond a reasonable doubt that the Defendant is guilty. The presumption of innocence attends the Defendant throughout the trial and prevails at its close unless overcome by evidence which satisfies the Jury of his guilt beyond a reasonable doubt. The Defendant is not required to prove his innocence.

¶ 40. Jury instruction 7 instructed the jury on reasonable doubt. It stated:

The Court instructs the Jury that a reasonable doubt may arise from the whole of the evidence, the conflict of the evidence, the lack of evidence, or the insufficiency of the evidence, but, however it arises, if it arises, it is your sworn duty to find the Defendant “Not Guilty.”

¶ 41. Based on a contextual reading of jury instruction 8 and considering the instructions as a whole, the jury received adequate instructions, and the burden did not shift to Banyard.

IV.

¶ 42. For the above reasons, I respectfully dissent and would affirm the judgments of the trial court and the Court of Appeals.

RANDOLPH, J„ JOINS THIS OPINION IN PART.

      . Ragsdale ultimately pleaded guilty to manslaughter and was sentenced to twenty years in prison.

      . Kyser testified that he did not know the identity of the speaker because it was dark.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Banyard’s proffered jury instruction D-13 read:
      The Court instructs the jury that in order for duress to be a defense to a criminal charge, the impelling danger must be present, imminent, and impending, and such a nature as to induce in a person well-grounded apprehension of death or serious bodily harm if the act is not done and that the danger to the defendant must be continuous.
      If you find from the evidence that Demarious Banyard acted under coercion and duress and the coercion and duress was created by Dennis Ragsdale and that the coercion and duress was present, imminent, and impending and induced Demarious Banyard[’s] apprehension of death or serious bodily injury if he did not comply with Dennis Ragsdale’s wishes and that such apprehension was continuous throughout the commission by him of the criminal act, then you should find Demarious Banyard not guilty of capital murder. If you find Demarious Banyard not guilty of capital murder, then you may proceed with your deliberations to decide whether he is guilty of manslaughter.
      If you find from the evidence that Robin Ballard was killed by the act, procurement, or culpable negligence of Demarious Ban-yard and without authority of law, then you should find him guilty of manslaughter.

      . Banyard filed a motion for rehearing and raised an additional Eighth-Amendment argument not raised at trial or in the initial appeal. The Mississippi Youth Justice Project, joined by several other organizations, requested permission to file an amicus brief, raising several additional issues, which the Court of Appeals granted. After additional briefing on rehearing, the Court of Appeals denied Banyard’s motion.

      . Young v. Guild, 7 So.3d 251, 259 (Miss.2009) (quoting Splain v. Hines, 609 So.2d 1234, 1239 (Miss.1992)).

      . Id. at 259.

      . Id.

      . Ellis v. State, 778 So.2d 114, 118 (Miss.2000) (citing Giles v. State, 650 So.2d 846, 854 (Miss.1995)).

      . Walker v. State, 913 So.2d 198, 235 (Miss.2005).

      . West v. State, 725 So.2d 872, 888 (Miss.1998), overruled on other grounds by Jackson v. State, 860 So.2d 653 (Miss.2003).

      . West, 725 So.2d at 891 (Miss.1998).

      . Ruffin, 992 So.2d at 1177 (citing West, 725 So.2d at 890 n. 7) (citing United States v. Harper, 802 F.2d 115, 117 (5th Cir.1986)).

      . See, e.g., Reddix v. State, 731 So.2d 591, 595 (Miss.1999) (reversing where "the jury could not have acquitted Reddix based upon self defense because it was not informed of any law permitting them to do so").

      . Banyard v. State, 47 So.3d 708, 712-13 (Miss.Ct.App.2009). See Miss.Code Ann. § 97-3-27 (Rev.2006) ("The killing of a human being without malice, by the act, procurement, or culpable negligence of another, while such other is engaged in the perpetration of any felony, except those felonies enumerated in Section 97-3-19(2)(e) and (f), or while such other is attempting to commit any felony besides such as are above enumerated and excepted, shall be manslaughter.") (emphasis added).

      . Banyard, 47 So.3d at 712-13.

      . Ellis v. State, 778 So.2d 114, 118 (Miss.2000) (citing Giles v. State, 650 So.2d 846, 854 (Miss.1995)) (emphasis added).

      . "The killing of a human being without malice, by the act, procurement, or culpable negligence of another, while such other is engaged in the perpetration of any felony, except those felonies enumerated in Section 97-3-19(2)(e) and (f), or while such other is attempting to commit any felony besides such as are above enumerated and excepted, shall be manslaughter.” Miss.Code Ann. § 97-3-27 (Rev.2006) (emphasis added).
      The excepted felonies are found in Section 97 — 3—19(2)(e) and (f):
      (e) When done with or without any design to effect death, by any person engaged in the commission of the crime of ... robbery. ...

      . See, e.g., Wilson v. State, 390 So.2d 575, 576 n. 1 (Miss.1980) (“Duress is a valid defense for many, crimes including robbery; [hjomicide is an exception.”) (citing Watson v. State, 212 Miss. 788, 55 So.2d 441, 443 (1951) ("[T]he law will excuse a person, when acting under coercion or compulsion, for committing most, if not all, crimes, except taking the life of an innocent person.”)).

      . See, e.g., Pittman v. State, 297 So.2d 888, 891 (Miss.1974).

      . Id.

      . Instruction 5 stated: "The law presumes every person charged with the commission of a crime to be innocent. This presumption places upon the State the burden of proving the Defendant guilty of every material element of the crime with which he is charged. Before you can return a verdict of guilty, the State must prove to your satisfaction beyond a reasonable doubt that the Defendant is guilty. The presumption of innocence attends the Defendant throughout the trial and prevails at its close unless overcome by evidence which satisfies the Jury of his guilt beyond a reasonable doubt. The Defendant is not required to prove his innocence.”

      . McHale v. Daniel, 233 So.2d 764, 768 (Miss.1970).

      . Id. at 769.

      . Id.

      . The trial judge read the instructions into the record. Her reading of instruction 8 had a few minor differences from the written instruction cited in this separate opinion. The only noticeable difference was that the judge did not read the “CAPITAL MURDER,” “MURDER," and "NOT GUILTY’ headers. Instructions 5 and 7 were read as written and cited in this separate opinion.


source: Caselaw Access Project

author: KITCHENS, Justice, GRAVES, Presiding Justice,

license: Public Domain

text:
    Charles BARRY v. John R. REEVES.
    No. 2009-CA-01124-SCT.
    Supreme Court of Mississippi.
    Sept. 30, 2010.
    Rehearing Denied Dec. 2, 2010.

      Joel W. Howell, III, Jackson, attorney for appellant.
    John Doyle Moore, attorney for appel-lee.
   KITCHENS, Justice,

for the Court:

¶ 1. Charles Barry filed this legal malpractice action against his former attorney, John R. Reeves. After the case had been pending for nearly seven and one-half years, the trial court granted Reeves’s motion to dismiss the case for failure to prosecute, and Barry appeals that ruling.

FACTS AND PROCEDURAL HISTORY

¶ 2. In the underlying medical malpractice case upon which this legal malpractice suit is based, John R. Reeves represented Charles Barry and filed a complaint on his behalf against Dr. Anson L. Thaggard and Methodist Medical Center, alleging negligent medical treatment related to a snakebite wound Barry had suffered on June 21, 1996. Barry v. Thaggard, 785 So.2d 1107, 1108 (Miss.Ct.App.2001). Summary judgment was granted in favor of the defendants on the theory that the applicable statute of limitations had run, and Barry appealed to this Court, which assigned the case to the Court of Appeals. Id. at 1109. The Court of Appeals affirmed the trial court’s granting of summary judgment in favor of the defendants. Id. at 1111. Its opinion was handed down on May 21, 2001. Id. at 1107. Barry filed no application for certiorari following the Court of Appeals’ decision.

¶ 3. After losing his appeal, Barry filed this legal malpractice action against Reeves on August 17, 2001, alleging breach of contract, breach of a fiduciary duty, and negligence, and both parties engaged in discovery until at least April 30, 2002. Nine months later, Reeves’s insurer, American National Lawyers Insurance Reciprocal (hereinafter “ANLIR”), went into receivership, and the Chancery Court of Tennessee, Twentieth Judicial District, Davidson County, entered an order enjoining litigation against ANLIR. This order was given full faith and credit and comity by the Chancery Court of the First Judicial District of Hinds County, Mississippi, by order dated February 20, 2003, and on March 14, 2003, Reeves filed a motion to stay this proceeding for the duration of his insurer’s receivership. The trial court granted Reeves’s motion on June 10, 2003.

¶ 4. On August 31, 2004, Barry filed two motions, one asking the trial court to lift the stay, and the other seeking leave to amend his complaint. The motion to lift the stay was argued on November 30, 2004, and the trial court granted that motion, restoring the case to the active docket on December 1, 2004. That same day, Barry’s motion for leave to amend his complaint was denied.

¶ 5. On September 30, 2005, Barry filed a motion to reopen discovery and set the case for trial, and that motion was heard in November 2005. After the trial court had not ruled on the motion for more than a year, Barry sent a letter to the trial court on April 5, 2007, copying opposing counsel and requesting a status conference. In response, Reeves filed a motion to dismiss for failure to prosecute, alleging that Barry had done nothing more than sit on the case for six years and file two frivolous motions.

¶ 6. On March 11, 2008, Barry filed a motion for a status conference, noting that he had “had motions to reopen discovery and to set this case for trial [pending] for more than one year, and a ruling [was] sought thereon.” After the trial court had not ruled on that motion for nearly a year, Barry sent a letter to the Administrative Office of the Courts, seeking relief pursuant to Mississippi Rule of Appellate Procedure 15(a), and this Court ultimately entered an order on February 4, 2009, granting Barry’s writ of mandamus and ordering the trial court “to rule on the plaintiffs Motion for Trial Setting and Related Relief and the Motion for Status Conference ... within fourteen (14) days of the date of [the] order.” Instead of ruling on that motion, the trial court granted Reeves’s motion to dismiss for failure to prosecute, which had been filed nearly two years earlier. Barry appeals that ruling. ;

ISSUES

¶ 7. The issues presented for this Court’s consideration afe (1) whether the trial court erred in dismissing the case for failure to prosecute, anil (2) whether the trial court erred in denying Barry’s motion for leave to amend his complaint.

ANALYSIS

1) Whether the trial court erred in dismissing the case for failure to prosecute.

¶ 8. The courts of this state have the inherent power to dismiss a case for want of prosecution, and a trial court may dismiss a case on that basis for the sake of expediting justice and controlling its own docket. Hill v. Ramsey, 3 So.3d 120, 122 (Miss.2009) (quoting Cucos, Inc. v. McDaniel, 938 So.2d 238, 240 (Miss.2006)). However, given the severity and finality of this sanction, which strips a litigant of his opportunity to pursue his cause of action, dismissal for failure to prosecute pursuant to Mississippi Rule of Civil Procedure 41(b) is “reserved for the most egregious cases.” Hillman v. Weatherly, 14 So.3d 721, 726 (Miss.2009) (quoting Wallace v. Jones, 572 So.2d 371, 376 (Miss.1990)). A ruling dismissing the case with prejudice on this basis “will be affirmed only if there is a showing of a clear record of delay or contumacious conduct by the plaintiff, and where lesser sanctions would not serve the best interest of justice.” Id. (citing Am. Tel. & Tel. Co. v. Days Inn of Winona, 720 So.2d 178, 181 (Miss.1998) (citing Rogers v. Kroger Co., 669 F.2d 317 (5th Cir.1982))) (emphasis added). “[C]ases ‘in which dis missals with prejudice have been affirmed on appeal illustrate that such a sanction is reserved for the most egregious of cases, usually cases where the requisite factors of clear delay and ineffective lesser sanctions are bolstered by the presence of at least one of the aggravating factors.’ ” Am. Tel. & Tel. Co., 720 So.2d at 181 (quoting Rogers, 669 F.2d at 320).

¶ 9. When examining a trial court’s dismissal of a case for want of prosecution, this Court will affirm the trial court’s findings of fact, unless the findings are manifestly wrong. Watson v. Lillard, 493 So.2d 1277, 1279 (Miss.1986). “This Court will not disturb a trial court’s ruling on a dismissal for want of prosecution unless it finds an abuse of discretion.” Hill, 3 So.3d at 122 (citing McDaniel, 938 So.2d at 240 (citations omitted)).

¶ 10. Here, the trial court’s order dismissing the case for failure to prosecute emphasizes the dates on which certain events occurred, including: June 21, 1996, when the underlying negligence is said to have occurred; August 17, 2001, when the complaint was filed against Reeves; June 10, 2003, when the matter was stayed due to ANLIR’s receivership proceedings; December 1, 2004, when the stay was lifted; and April 10, 2007, when the motion to dismiss the case for failure to prosecute was filed. After listing those findings of fact, the trial court noted:

The plaintiff had every opportunity to conduct and complete discovery from August 16, 2001[], the date the complaint was filed, through June 10,' 2003, the date this matter was Stayed. A review of the file reveals that plaintiff did not take advantage of that opportunity. ... [Sjince the Stay was lifted on December 1, 2004 up to the filing of the herein motion to dismiss on April 10, 2007, this matter was not prosecuted. It has been over twelve years since the incident herein occurred. The facts and circumstances surrounding the prosecution of this matter require that the herein matter be dismissed.

¶ 11. These findings of fact are not supported by the record and are manifestly wrong. The trial court found that Barry had not conducted discovery after he filed the complaint on August 17, 2001, yet the record reveals that both parties actively participated in the discovery process by requesting, producing, and supplementing discovery until at least April 30, 2002. As for the trial court’s finding that Barry failed to prosecute the case after the stay had been lifted on December 1, 2004, the trial court neglected to acknowledge that the stay was lifted in response to Barry’s filing the motion to lift the stay. In addition, the trial court did not note that Barry had filed a motion for trial setting and for additional relief on September 30, 2005, a motion on which a hearing was held in November 2005. The record also included three letters sent in 2005 and 2006 in which Barry sought the aid of counsel opposite in selecting a date upon which the case could be tried. Unsuccessful in that effort, Barry sent a letter to the trial court on April 5, 2007, requesting a status conference on the case.

¶ 12. It was not until after these efforts by Barry that Reeves filed his motion to dismiss for failure to prosecute. Thus, the trial court’s failure to include these actions by Barry in its findings of fact was a very relevant omission amounting to manifest error.

¶ 13. Notwithstanding these erroneous findings of fact, it must be noted that there was some delay in the prosecution of this case. Specifically, after the parties had engaged in discovery, which the record indicates was last supplemented by Barry on April 30, 2002, a period of nine months of inactivity preceded the Tennessee court’s order requiring a stay of all litigation which exposed ANLIR to financial harm. Another ten-month period of inactivity occurred between December 1, 2004, when the trial court granted Barry’s motion to lift the stay and denied Barry’s motion to amend his complaint, and September 30, 2005, when Barry filed the motion to set the case for trial. After Barry filed the motion to schedule a trial, the record reflects that he made several attempts to obtain a trial date through correspondence with opposing counsel, but nothing in the record suggests that counsel for Reeves responded to those efforts. After Barry sent his last letter to Reeves’s lawyer on April 27, 2006, nothing occurred until April 5, 2007, when Barry sent a letter to the trial court requesting a status conference. Another period of inactivity occurred between that letter and Barry’s filing a motion, on March 11, 2008, for a status conference.

¶ 14. However, the mere fact that delay occurs in the prosecution of a case is not sufficient to warrant dismissal for want of prosecution. It must be clear from the record that the delay was the result of the plaintiffs failure to prosecute the claim, rather than extrinsic factors beyond the control of the plaintiff. See M.R.C.P. 41(b).

¶ 15. In the case at hand, it is far from clear that the delay in the prosecution of this case is attributable to Barry. Indeed, each period of inactivity was interrupted by a positive action by Barry to expedite the litigation. Specifically, after the receivership had ended, Barry filed the motion to lift the stay. After the next ten-month period of inactivity, Barry filed a motion to set trial, which has not been ruled on by the trial court. The next one-year period of inactivity came to an end when Barry sent a letter to the trial court, requesting a status conference and a trial date, and another period ended by Barry’s filing his motion for a status conference and a trial date. Finally, the last period of inactivity was terminated when Barry sent a letter to the Administrative Office of the Courts pursuant to Rule 15(a) of the Mississippi Rules of Appellate Procedure.

¶ 16. What is clear from the record is that significant, protracted delays in the prosecution of this case were beyond Barry’s control, including the near twenty-month delay attributable to ANLIR’s receivership, the seventeen-month delay caused by defense counsel’s failure to respond to Barry’s letters, and the trial court’s failure to rule on Barry’s motion for a status conference. Accordingly, it cannot be said that there is a clear record establishing that Barry delayed the case’s prosecution.

¶ 17. Moreover, “[t]his Court has held that a case should be dismissed with prejudice under Rule 41(b) only if lesser sanctions are inadequate.” Hillman, 14 So.3d at 727 (citing Wilson, 4 So.3d at 343). “Lesser sanctions include ‘fines, costs, or damages against plaintiff or his counsel, attorney disciplinary measures, conditional dismissal, dismissal without prejudice, and explicit warnings.’” Id. (quoting Miss. Dep’t of Human Servs. v. Guidry, 830 So.2d 628, 633 (Miss.2002) (quoting Wallace, 572 So.2d at 377)). This Court is not likely to affirm the dismissal for failure to prosecute, unless it is clear that the trial court has considered lesser sanctions and has concluded that “such sanctions would have been futile in expediting the proceedings.” Am. Tel. & Tel. Co., 720 So.2d at 181 (citing Wallace, 572 So.2d at 377; McCloud River R.R. Co. v. Sabine River Forest Prods., Inc., 735 F.2d 879, 883 (5th Cir.1984) (trial court’s order vacated for failure to consider lesser sanctions)).

¶ 18. In this case, prior to dismissing the case for failure to prosecute, the trial court had not imposed any lesser sanctions, nor had it threatened counsel for Barry with lesser sanctions, and nothing in the record suggests that the trial court considered lesser sanctions prior to dismissing the case. Thus, because there is no clear record of delay or contumacious conduct on the part of Barry, and the trial court did not consider lesser sanctions pri- or to its dismissal of the case for failure to prosecute, the trial court abused its discretion in dismissing this case.

2) Whether the trial court erred in denying Barry’s motion for leave to amend his complaint.

¶ 19. Mississippi Rule of Civil Procedure 15(a) allows a party to amend his or her complaint with leave of court, and notes that “leave shall be freely given when justice so requires.” M.R.C.P. 15(a).

[I]f the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, etc. — the leave sought should, as the rules require, be “freely given.”

Webb v. Braswell, 930 So.2d 387, 393 (Miss.2006) (quoting Moeller v. Am. Guar. and Liab. Ins. Co., 812 So.2d 953, 962 (Miss.2002) (citations omitted)). Also, “[t]his Court does not view lack of diligence as a compelling reason to amend.” Id. at 395. “Applications to amend the pleadings should be prompt and not the result of lack of diligence.” Id. (citing Harris v. Miss. Valley State Univ., 873 So.2d 970, 991 (Miss.2004)). If a party has “had ample opportunity and time to amend its complaint, and has offered no justification for why it did not do so,” this Court generally will affirm the trial court’s disallowance of an amendment. Id.; see also (Hartford Cas. Ins. Co. v. Halliburton Co., 826 So.2d 1206, 1219 (Miss.2001)). “Motions for leave to amend complaint are left to the sound discretion of the trial court.” Church v. Massey, 697 So.2d 407, 413 (Miss.1997) (quoting McCarty v. Kellum, 667 So.2d 1277, 1283 (Miss.1995) (quoting Frank v. Dore, 635 So.2d 1369, 1375 (Miss.1994))). “This Court reviews such determinations under an abuse of discretion standard and unless convinced that the trial judge abused his discretion, we are without authority to reverse.” Id.

¶ 20. Here, Barry filed his initial complaint on August 17, 2001, and sought leave to file an amended complaint three years later, on August 31, 2004. The only variance between the two complaints was the addition of a demand for punitive damages in the proposed amended complaint. Barry’s argument rests simply on the fact that the rule says “leave shall be freely given when justice so requires.” M.R.C.P. 15(a). Barry has offered no reason for his failure to plead punitive damages in his initial complaint and for waiting three years to amend his complaint to include the demand for punitive damages. Thus, Barry effectively has conceded his lack of diligence in failing to plead punitive damages in the initial complaint. Accordingly, the trial judge did not abuse his discretion in denying Barry the right to amend his complaint.

CONCLUSION

¶ 21. Because there is not a clear record of delay or contumacious conduct on the part of Barry, and the trial court did not consider lesser sanctions prior to dismissing the case for failure to prosecute, the trial court abused its discretion in dismissing the case; therefore, the ruling dismissing the case for failure to prosecute is reversed, and the matter is remanded for a trial on the merits. But, because Barry failed to establish that his failure to plead punitive damages in the initial complaint was not the result of lack of diligence, the trial court’s denial of leave to amend the complaint is affirmed.

¶ 22. AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

CARLSON, P.J., RANDOLPH AND LAMAR, JJ., CONCUR. GRAVES, P.J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY DICKINSON AND CHANDLER, JJ. WALLER, C.J, AND PIERCE, J., NOT PARTICIPATING.

GRAVES, Presiding Justice,

concurring in part and dissenting in part:

¶ 23. I disagree with the majority’s holding that the trial judge abused his discretion by granting the Motion to Dismiss for Failure to Prosecute. However, I do agree with the majority that the trial judge did not abuse his discretion in denying the plaintiffs motion to amend his complaint. Therefore, I respectfully dissent in part and concur in part.

¶ 24. In reviewing a trial judge’s ruling on a dismissal for want óf prosecution, this Court will not overturn that ruling unless it finds that the trial, court abused its discretion. Hill v. Ramsey, 3 So.3d 120, 122 (Miss.2009) (quoting Cucos, Inc. v. McDaniel, 938 So.2d 238, 240 (Miss.2006)). In addition, this Court will affirm the trial judge’s finding of fact unless the findings are manifestly wrong. Watson v. Lillard, 493 So.2d 1277, 1279 (Miss.1986).

¶ 25. The facts of this case reveal that the plaintiff, Charles Barry, failed to aggressively pursue his action against the defendant, John R. Reeves. On August 17, 2001, Barry filed his complaint against Reeves for legal malpractice. Reeves then promptly filed his Answers and Defenses on October 1, 2001. However, Barry failed to adequately answer Reeves’ First Set of Interrogatories, which prompted Reeves to file his Motion to Compel Discovery on March 4, 2002. Nothing further appears in the record until March 14, 2003, when Reeves filed his Motion for Emergency Stay of Proceedings based on his insurance carrier’s receivership status.

¶ 26. In addition, once the Stay was lifted on December 1, 2004, Barry took no action for nearly ten months before filing his Motion for Trial Setting and Related Relief on September 30, 2005. A hearing was held on this motion in November 2005, and the trial judge took the matter under advisement. With the exception of three letters in which Barry sought the aid of counsel opposite in selecting a trial date, Barry failed to take action for almost two years until filing his Motion for Status Conference on March 11, 2008. Here, Barry apparently attempted to comply with Mississippi Rule of Appellate Procedure 15(a) by mailing a letter, dated April 24, 2008, to the trial judge with a copy of a proposed order, requesting the trial judge to rule on all pending motions. However, Reeves previously had filed his Motion to Dismiss for Failure to Prosecute on April 10, 2007. Barry failed to respond to Reeves’ motion for almost a year.

¶ 27. On February 13, 2009, the trial judge entered an order dismissing Barry’s claim with prejudice, finding that “[Barry] had every opportunity to conduct and complete discovery from August 1[7], 2001, the date the complaint was filed, through June 10, 2003, the date this matter was Stayed. A review of the file reveals that [Barry] did not take advantage of that opportunity.” The trial judge also found that from the time the Stay was lifted on December 1, 2004, through April 10, 2007, the date Reeves filed his Motion to Dismiss, Barry did not prosecute the matter.

¶ 28. It is clear from the record that there was no abuse of discretion in this case. It is neither the defendant’s nor the trial judge’s nor the court’s duty to ensure that the plaintiff prosecutes his claim. It is the plaintiffs. Here, Barry’s failure, not once, but twice, to take affirmative steps in pursuing his cause of action against Reeves substantially delayed the proceedings. Because these periods of inactivity were the product of Barry’s dilatory conduct, the trial judge did not abuse his discretion in dismissing Barry’s action for lack of prosecution.

¶ 29. Pursuant to the Mississippi Uniform Circuit and County Court Rules “[a]ll discovery must be completed within ninety days from service of an answer by the applicable defendant. Additional discovery time may be allowed with leave of court upon written motion setting forth good cause for the extension.” URCCC 4.04. This ninety-day period ended at the end of December 2002. Although the parties continued correspondence concerning discovery for another year, nothing prevented Barry from taking some action in moving the case forward. Yet, he failed to do so.

¶ 30. Furthermore, although Barry attempted to consult with counsel opposite regarding a trial setting, Barry failed to seek a ruling on the matter from the trial court. According to the record, Barry had seventeen months in which to get a trial date set with the court. Yet, he failed to do so and as a result, the trial court, on motion of the defendant, appropriately exercised its discretion in dismissing the action.

¶ 31. Accordingly, I must dissent in part and would affirm the trial judge’s ruling in granting the defendant’s Motion to Dismiss for Failure to Prosecute; and concur in part, affirming the trial judge’s ruling in denying the plaintiffs Motion for Leave to File Amended Complaint.

DICKINSON AND CHANDLER, JJ., JOIN THIS OPINION.

      . Mississippi Rule of Civil Procedure 41(b) provides: "For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal Of an action or of any claim against him.” M.R.C.P. 41(b).

      . The certificate of service accompanying the complaint was signed August 16, 2001. However, the complaint was not stamped filed until August 17, 2001.

      . On January 30, 2002, in response to counsel opposite, counsel for Barry stated that he would determine if supplementation was appropriate. At the time Reeves filed his Motion to Compel Discovery, Barry still had not complied with the request to supplement discovery.

      . Barry filed his response to Motion to Dismiss for Lack of Prosecution on April 7, 2008.

      . This time period is from November 2005, when Barry’s Motion for Trial Setting and Related Relief was heard, through April 10, 2007, the date on which Reeves' Motion to Dismiss for Lack of Prosecution was filed.


author:
LAMAR, Justice,
      GRAVES, Presiding Justice, KITCHENS, Justice,

text:
    Kristi FULGHAM v. STATE of Mississippi.
    No. 2009-CA-00971-SCT.
    Supreme Court of Mississippi.
    Nov. 5, 2010.

      R. Gregg Mayer, James W. Craig, Jackson, attorneys for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
   LAMAR, Justice,

for the Court:

¶ 1. While incarcerated, Kristi Fulgham had access to a cell phone and charger, which she provided to an inmate in the Oktibbeha County Jail. Fulgham subsequently pleaded guilty under a statute that prohibits “any ... person” from “fur-nishfing], attempting] to furnish, or assisting] in furnishing to any offender ... an unauthorized electronic device.” She now contends that she pleaded guilty to an unconstitutionally vague statute. Finding the record needs more development, we remand for an evidentiary hearing on (1) whether Fulgham had notice that a cell phone and charger constitute an “electronic device,” and if so, (2) whether they were “unauthorized,” and (3) whether law enforcement had definite standards to avoid arbitrary enforcement.

FACTS

¶ 2. In August 2004, Fulgham was incarcerated on a charge of capital murder when she was caught allegedly furnishing a cell phone and charger to another inmate. Fulgham pleaded guilty to furnishing an unauthorized electronic device to an inmate. Fulgham was sentenced to eight years.

¶ 3. Fulgham timely filed a petition for post-conviction relief in the trial court and challenged her guilty plea. Fulgham argued that the statute is unconstitutionally vague, and that she had pleaded guilty to a crime for which she cannot be convicted. She also argued that her counsel was ineffective for failing to challenge the constitutionality of the statute.

¶ 4. Without a hearing, the trial court issued an order denying post-conviction relief. The court held that she had waived the right to question the statute’s constitutionality by pleading guilty, and it found the statute was not unconstitutionally vague.

DISCUSSION

1. Whether Fulgham’s claim is procedurally barred.

¶ 5. Under Mississippi’s Uniform Post-Conviction Collateral Relief (PCR) Act, Fulgham has the right to file a petition for post-conviction relief challenging the constitutionality of the statute under which she was convicted and sentenced. However, the PCR Act also provides that:

Failure by a prisoner to raise objections, defenses, claims, questions, issues or errors either in fact or law which are capable of determination at trial and/or on direct appeal, regardless of whether such are based on the laws and the Constitution of the state of Mississippi or of the United States, shall constitute a waiver thereof and shall be procedurally barred, but the court may upon a showing of cause and actual prejudice grant relief from the waiver.

¶ 6. Our caselaw clearly establishes that this procedural bar cannot be applied in the face of “errors affecting fundamental rights,” because such a violation “is too significant a deprivation of liberty to be subjected to a procedural bar.” And a conviction under an unconstitutionally vague statute violates the Due Process Clause, which we find to be an error affecting a fundamental constitutional right. If the phrase “unauthorized electronic device” is vague under the Due Process Clause, then the State had no power to bring an indictment charging a violation of Mississippi Code Section 47-5-193. This Court has ruled that “ ‘[wjhere the State is precluded by the United States Constitution from haling a defendant into court on a charge, federal law requires that a conviction on that charge be set aside even if the conviction was entered pursuant to a counseled plea of guilty.’ ” Therefore, we except Fulgham’s claim from the procedural bar.

II. Whether Mississippi Code Section 47-5-193 is unconstitutionally vague.

¶ 7. Fulgham argues that the version of Mississippi Code Section 47-5-193 in force at the time of her guilty plea was facially vague, that is, the vagueness was apparent from the words of the statute. She points to the fact that the statute has been twice amended to include the terms “cell phone” and “charger.” Fulgham asserts that the statute is vague for failing to define the phrase “unauthorized electronic device.” Last, Fulgham argues that her trial counsel was ineffective for failing to advise her or the court of the statute’s alleged vagueness. The State also contends that the statute is not facially vague, and alternatively, that it is not unconstitutional as applied to Fulgham.

¶ 8. As previously noted, an unconstitutionally vague statute violates the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution. Because there is a strong presumption that a legislative enactment is valid, the party challenging a statute’s constitutionality must prove his or her case beyond a reasonable doubt. All doubts are resolved in favor of the validity of the statute. The U.S. Supreme Court has ruled that “the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” The Court has ruled that “[t]he test is whether the language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.”

¶ 9. As previously noted, Fulgham asserts the statute is facially vague, while the State argues that we should analyze whether the statute is constitutional as applied to Fulgham’s conduct. The U.S. Supreme Court’s jurisprudence has been rather obscure as to when courts should engage in an as-applied analysis versus a facial analysis when reviewing a statute for vagueness. Furthermore, this Court has used each analysis in separate cases without instruction as to application. So, we set forth some notable decisions by the U.S. Supreme Court on this issue and are guided by the Fifth Circuit’s interpretation of it. We often defer to the Fifth Circuit’s interpretation of federal law but are not bound by it.

¶ 10. In U.S. v. National Dairy Products, the parties challenged a criminal statute “on its face” for vagueness, while the Government argued the statute was constitutional as applied to the alleged conduct. The Court found that a statute must not be examined in the “abstract” but rather “in light of the conduct with which a defendant is charged.” The Court noted that it conducts a facial analysis of an allegedly vague statute in cases arising under the First Amendment “because such vagueness may in itself deter constitutionally protected and socially desirable conduct.”

¶ 11. In Village of Hoffman Estates, the Court set forth a test governing a facial challenge to an allegedly vague statute. The Court ruled that the “complainant must demonstrate that the law is im-permissibly vague in all of its applications” and that “[a] court should therefore examine the complainant’s conduct before analyzing other hypothetical applications of the law.” However, the Court noted that “the most important factor affecting the clarity that the Constitution demands of a law is whether it threatens to inhibit the exercise of constitutionally protected rights.” If it does, then “a more stringent vagueness test should apply.”

¶ 12. In Kolender v. Lawson, the Court used a more stringent vagueness test to strike down an antiloitering statute as being subject to arbitrary enforcement. In that case, the Court found that a facial analysis was appropriate, because the statute potentially suppressed First Amendment liberties and implicated the constitutional right of freedom of movement. And in City of Chicago v. Morales, the Court again used a facial analysis and struck down an antiloitering ordinance as vague, reasoning that: (1) the statute contained no mens rea element, (2) the statute infringed on a constitutionally protected right, and (3) vagueness permeated the text of the law.

¶ 13. The Fifth Circuit Court of Appeals has interpreted the Supreme Court’s precedent to require the following steps in a vagueness challenge: 1. The court must consider whether the statute affects a constitutional right. 2. If the statute implicates no constitutionally protected right, the court should consider whether the statute is impermissibly vague in all of its applications, applying the statute to the complainant’s conduct before considering any hypothetical scenarios. In applying the statute to the facts at hand, the court must consider whether the complainant had notice of what conduct is prohibited and whether law enforcement had definite standards to avoid arbitrary enforcement. “‘The same facets of a statute usually raise concerns of both fair notice and adequate enforcement standards. Hence the analysis of these two concerns tends to overlap.’ ”

¶ 14. We agree with the Fifth Circuit’s interpretation of the vagueness doctrine and apply it to this case. At the time of Fulgham’s offense, Mississippi Code Section 47-5-193 provided that:

It is unlawful for any officer or employee of the department, or any county sheriffs department, of any private correctional facility in this state in which offenders are confined or for any other person to furnish, attempt to furnish, or assist in furnishing to any offender confined in this state any weapon, deadly weapon, unauthorized electronic device or contraband item. It is unlawful for any person to take, attempt to take, or assist in taking any weapon, unauthorized electronic device or contraband item on property belonging to the department which is occupied or used by offenders, except as authorized by law.

We note that the statute in effect in 2004 contained no definition for “unauthorized electronic device.”

¶ 15. First, we must determine whether the statute affects a constitutionally protected right. Fulgham does not argue that the statute affects any constitutional right, and we find that it does not. Therefore, we apply the statute to Fulg-ham’s conduct to determine whether she had notice of what conduct was prohibited and whether law enforcement had definite standards to avoid arbitrary enforcement. This inquiry involves a factual determination for the trial court, which did not hold a hearing on Fulgham’s petition for post-conviction relief. And the plea dialogue in this ease provides no more information than what is contained in the bare-bones indictment. The record before us is silent as to what was or was not “authorized” and what, if any, notice was given to Fulg-ham. Therefore, we remand for an evi-dentiary hearing for the court to determine (1) whether Fulgham had notice that a cell phone and charger constituted an “electronic device,” and if so, (2) whether she had notice that they were “unauthorized,” and (3) whether law enforcement had definite standards to avoid arbitrary enforcement. These questions simply cannot be answered based on the sparse record before us.

CONCLUSION

¶ 16. This Court remands for an evi-dentiary hearing on (1) whether Fulgham had notice that a cell phone and charger constituted an “electronic device,” and if so, (2) whether she had notice that they were “unauthorized,” and (3) whether law enforcement had definite standards to avoid arbitrary enforcement. This inquiry will allow the trial court to determine whether the statute is unconstitutional as applied to Fulgham’s conduct and whether relief should be granted.

¶ 17. REVERSED AND REMANDED.

WALLER, C.J., CARLSON, P.J., AND DICKINSON, J., CONCUR. GRAVES, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY RANDOLPH, CHANDLER AND PIERCE, JJ. KITCHENS, J„ CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION.

GRAVES, Presiding Justice,

Dissenting:

¶ 18. “Vagueness challenges to statutes which do not involve First Amendment freedoms must be examined in light of the facts of the case at hand.” U.S. v. Mazurie, 419 U.S. 544, 550, 95 S.Ct. 710, 42 L.Ed.2d 706 (1975). In light of the facts herein, I find that the statute under which Fulgham was prosecuted is valid and, therefore, I respectfully dissent.

¶ 19. At the time Fulgham was caught furnishing a cell phone and cell-phone charger to another inmate, she too was an inmate. While an inmate does not lose all rights upon being incarcerated, incarceration necessarily entails limitations on the right of inmates to possess property in prison. Harris v. Forsyth, 735 F.2d 1235 (11th Cir.1984). One such limitation is set forth in Mississippi Code Section 47-5-193, which provided:

It is unlawful for any officer or employee of the department, or any county sheriffs department, or any private correctional facility in this state in which offenders are confined or for any other person to furnish, attempt to furnish, or assist in furnishing to any offender confined in this state any weapon, deadly weapon, unauthorized electronic devise or contraband item. It is unlawful for any person to take, attempt to take, or assist in taking any weapon, deadly weapon, unauthorized electronic device or contraband item on property belonging to the department which is occupied or used by offenders, except as authorized by law.

Miss.Code Ann. § 47-5-193 (Rev.2004).

¶ 20. Fulgham challenges this statute as being unconstitutionally vague. Specifically, Fulgham argues that the phrase “unauthorized electronic device” is not defined in the statute, and therefore the statute fails adequately to provide fair notice of the conduct that is prohibited. The majority correctly points out that “[t]he void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983). In applying this test to the language of the statute, logic tells us that a “cell phone” and “cell-phone charger” are “unauthorized electronic devices” for inmate use.

¶ 21. While “unauthorized electronic device” is not specifically defined in the statute, ordinary people can understand that a cell phone and cell-phone charger are electronic devices. Further, as incarceration necessarily entails limitations on an inmate’s right to possess property, “unauthorized” necessarily would include anything that is not specifically authorized. Harris, 735 F.2d 1235. In light of the facts in this case, it would be illogical to reason that the word “unauthorized” does not encompass the meaning “not specifically authorized.” Thus, the phrase “unauthorized electronic device,” implies that any electronic device that is not specifically authorized for inmate use is prohibited.

¶ 22. In this case, Fulgham has provided no evidence that she was ever authorized to possess, use, or furnish to another, a cell phone and cell-phone charger while in prison. In my view, the phrase “unauthorized electronic device,” means that any electronic device not specifically authorized for inmate use is prohibited. Accordingly, I find Mississippi Code Section 47-5-193 (Rev.2004), to be constitutional and would affirm Fulgham’s guilty plea.

RANDOLPH, CHANDLER AND PIERCE, JJ„ JOIN THIS OPINION.

KITCHENS, Justice,

concurring in part and dissenting in part:

¶ 23. I agree that we should reverse the trial judge’s denial of post-conviction relief. However, because the statute is irreparably vague under any application, I would grant Fulgham’s petition for post-conviction relief and reverse her conviction on the count she challenges. Fulgham presents a question of law that can and should be decided by this Court; therefore, I respectfully concur in part and dissent in part.

¶ 24. It is true that the United States Supreme Court has said that “vagueness challenges to statutes which do not involve First Amendment freedoms must be examined in the light of the facts of the case at hand.” U.S. v. Mazurie, 419 U.S. 544, 550, 95 S.Ct. 710, 42 L.Ed.2d 706 (1975). However, when a statute is so vague that it provides no standard at all, the defendant’s conduct, in the absence of a clearly defined and understandable standard, is immaterial. U.S. v. Williams, 553 U.S. 285, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008). Thus, an as-applied analysis is unnecessary, because “[i]f on its face the challenged provision is repugnant to the due process clause, specification of details of the offense intended to be charged would not serve to validate it.” Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 83 L.Ed. 888 (1939) (citations omitted).

¶ 25. The Mississippi statute under which Fulgham was prosecuted, Mississippi Code Section 47-5-193 (Rev.2004), fails to comply with due process requirements. See U.S. Const, amend. XIV; Miss. Const. art. 3, § 14. The phrase in question, “unauthorized electronic device,” is so inherently indeterminate that it provides neither minimum standards of enforcement nor “definite warning as to the proscribed conduct.” Nichols v. City of Gulfport, 589 So.2d 1280, 1282 (Miss.1991) (citations omitted). Hundreds of thousands of products can be described as “electronic devices,” and in this instance the term is statutorily limited only by the adjective “unauthorized.” The question that logically follows is, of course, “Unauthorized by whom?” The statute leaves the courts, and worse, the public, to wonder who is vested with the authority to declare a device “unauthorized.” An “offender confined in this state” may be subject to a plethora of authorities, including the courts, the legislature, local governments, the Mississippi Department of Corrections, sheriffs, and private correctional enterprises, to name some of them. In addition, federal prisoners may be temporarily confined in Mississippi jails, and some of our correctional facilities are run by private entities. Without specific legislative guidance, this Court cannot divine under whose authority an inmate’s possession of these nondescript and multitudinous devices is regulated, and “[w]e are not about the business of legislating.” Champluvier v. State, 942 So.2d 145, 154 (Miss.2006). The extremely broad term “electronic devices” can encompass everything from a secondhand toaster to the Hubble Space Telescope. Surely our legislature can be more specific. So can we. But that is not our province; it is the legislature’s. See Miss. Const, art. 1, §§ 1, 2 (providing for separation of governmental powers).

¶ 26. The plurality holds that “the only reasonable interpretation is that the entity having custody of the inmate determines what is ‘unauthorized.’ ” Plur. Op. n. 34. However, even if the statute could be read to mean that the Oktibbeha County Sheriffs Department and/or the Mississippi Department of Corrections have been given the authority to define criminal conduct, this would constitute an unconstitutional delegation of legislative authority. “[T]he authority to define crimes and provide the punishment therefor is vested exclusively in the Legislature, and it may not delegate that power expressly or by implication nor may an administrative agency enlarge the criminal liability of the statute.” State v. Russell, 358 So.2d 409, 411-12 (Miss.1978) (citing Howell v. State, 300 So.2d 774 (Miss.1974)). See also Miss. Const. art. 4, § 33 (vesting legislative power in the legislature); Miss. Const. art. 1, §§ 1-2 (providing separation of powers). The Oktib-beha County Sheriffs Department is part of the executive branch of government, which constitutionally cannot define state crimes.

¶ 27. Undeniably, it is appropriate that the duly elected or appointed authorities who operate prisons and jails be permitted to promulgate and enforce reasonable restrictions — consistent with applicable law and considerations of safety, security, hygiene, and health — upon the kinds of things that cannot be possessed by incarcerated persons, or provided to them by others. What those authorities cannot do, however, is make it a crime for an incarcerated person to possess a particular thing, or for another person to make such a thing available to an incarcerated person. To confer upon a sheriff or other peace officer, or upon a state corrections official, or any other person or group, the power to criminalize the possession or provision of a certain thing, or kind of thing, by allowing him or them to designate that thing as unauthorized, is, without question, an unconstitutional delegation of a power that belongs solely to the legislature. The time-honored constitutional doctrine of separation of powers clearly proscribes such a delegation of authority. Miss. Const, art. 1, §§ 1-2.

¶ 28. The plurality remands for an evi-dentiary hearing, but there can be no extrinsic evidence that would, or can, cure the statutory defect. Our concern is with the language of the statute in issue, Mississippi Code Section 47-5-193 (Rev.2004). “[T]he test is whether the language [of the statute in question] conveys sufficiently definite warning as to the proscribed conduct,” Jordan v. De George, 841 U.S. 223, 231, 71 S.Ct. 703, 95 L.Ed. 886 (1951) (emphasis added), not whether some extrinsic source could have provided sufficient notice to satisfy due process of law. Fulgham is presumed to be on notice of the language of the statute, not the rules and regulations governing certain correctional facilities. See McNeely v. State, 277 So.2d 435, 437 (Miss.1973) (“all persons are presumed to know the law”). Therefore, even if the State were to produce some document from the Oktibbeha County Sheriffs Department which prohibited cell phones and chargers, it could not serve to fill in the gaps left by the legislature or provide law enforcement authorities with “definite standards to avoid arbitrary enforcement.” Plur. Op. at ¶ 1.

¶ 29. Notably, although of no consequence to the resolution of the present case, in 2006 and 2008 the legislature amended Section 47-5-193 specifically to add to that statute’s list of forbidden items, inter alia, the very kinds of things the prosecution contended in this case came under the umbrella of “unauthorized electronic device[s]” at the time of the alleged offense, which predated either of the amendments. In addition to unauthorized electronic devices, which remain statutorily undefined in Mississippi, the amended code section specifies “... cell phone, or any of its components or accessories to include ... chargers.... ” Miss. Code Ann. § 47-5-193 (Supp.2010).

¶ 30. The version of the statute in effect at the time alleged in the indictment— August 16, 2004 — did not include the words cell phone or charger. What the statute did provide at that time, in pertinent part, was:

It is unlawful for any ... person to furnish, attempt to furnish, or assist in furnishing to any offender confined in this state any ... unauthorized electronic device....

Miss.Code Ann. § 47-5-193 (Rev.2004). The charge laid against Fulgham in the indictment, in pertinent part, avers that she:

did unlawfully, wilfully, and feloniously, furnish to an inmate of the Oktibbeha County jail an unauthorized electronic device, to-wit: a cellular telephone and charger, contrary to the form of the statutes in such cases made and provided....

¶ 31. Mississippi Code Section 47-5-193 is cited in the caption at the top of the indictment, but not in the formal, charging portion of the document returned by the grand jury. The indictment improperly exceeds the language of the statute by elaborating, as the statute did not do at that time — and, strictly speaking, does not do now — that the term unauthorized electronic device can mean “a cellular telephone and charger.” Significantly, a literal construction of the statute in its present form reveals that the legislature has made a distinction between unauthorized electronic device and cell phone and chargers. Miss.Code Ann. § 47-5-193 (Supp.2010).

¶ 32. If the amendments to the statute had been enacted and had taken effect prior to August 16, 2004, the indictment returned against Fulgham on July 25, 2005, could be read to have sufficiently charged her with having unlawfully furnished statutorily prohibited articles to an inmate of the Oktibbeha County jail. The drafter of the indictment attempted to supply what the legislature had omitted from its original enactment, but did provide by means of its 2006 and 2008 amendments: specificity with regard to exactly what kinds of things cannot lawfully be taken into certain places of imprisonment. But, alas, neither drafters of indictments nor appellate courts possess the constitutional authority to fill in the gaps in statutes that are hopelessly afflicted by unconstitutional vagueness. That is a legislative function, not a prosecutorial function and not a judicial one. The Mississippi Legislature rightly undertook that function by its remedial amendments of Section 47-5-193 in 2006 and 2008. Though the statute stood in need of repair on August 16, 2004, the date of Fulgham’s alleged violation of it, and though the drafter of the indictment presciently foresaw what the legislature later would determine the statute ought to say, from a constitutional standpoint it was hopelessly vague when the State sought to invoke it against Fulgham.

¶33. Finally, from the plain language of the statute, it is questionable whether it even applies to Fulgham’s alleged conduct. Fulgham was indicted for “furnishing] to an inmate of the Oktibbeha County jail an unauthorized electronic device.” (Emphasis added.) The statute clearly requires that the recipient be “any offender confined in this state.” Miss.Code Ann. § 47-5-193 (emphasis added). An offender is defined as “any person convicted of a crime or offense under the laws and ordinances of the state and its political subdivisions.” Miss.Code Ann. § 47-5-4(c) (Rev. 2004) (emphasis added). And, though not specifically applicable to Section 47-5-193, the code elsewhere defines an inmate as “any person incarcerated within any state correctional facility.” Miss.Code Ann. § 47-5-539(c) (Rev.2004). Likewise, Mississippi Code Section 47-5-703(a) (Rev. 2004) defines an inmate as

[E]very person who at the time of the declaration of a prison system overcrowding state of emergency, or at any time during the continuation of a state of emergency, is incarcerated by the Mississippi Department of Corrections as a result of a commitment to the department, including persons committed to the department and incarcerated in local or county jails or other facilities authorized to house state inmates.

Moreover, the Interstate Corrections Compact defines an inmate as “a male or female offender who is committed, under sentence to or confined in, a penal or correctional institution.” Miss.Code Ann. § 47-5-1351(d) (Supp.2010).

¶ 34. Clearly, there is a significant distinction between an inmate and an offender, and the person to whom Fulg-ham allegedly furnished the “unauthorized electronic devices” may not have been an “offender.” Many people who have not been convicted of a crime may be incarcerated in a county jail, e.g., detainees awaiting trial, persons awaiting a civil commitment hearing, and persons incarcerated for civil contempt. Thus, on remand, the trial court should also determine whether the person to whom Fulgham furnished the cell phone and charger was an “offender,” as defined by Mississippi Code Section 47-5-4.

¶ 35. Yet, as explained above, no evi-dentiary hearing could possibly save this conviction. The phrase “unauthorized electronic device” is so ambiguous that it cannot be said clearly to define criminal conduct. Because due process of law requires that portion of the statute in question be declared void for its vagueness, I would reverse and render.

      . Miss.Code Ann. § 47-5-193 (Rev.2004).

      . Miss.Code Ann. § 99 — 39-5(l)(c) (Rev.2007).

      . Miss.Code Ann. § 99-39-21(1) (Rev.2007).

      . Smith v. State, 477 So.2d 191, 195 (Miss.1985).

      . Jones v. City of Meridian, 552 So.2d 820, 824 (Miss.1989); U.S. Const. amend. XIV § 1.

      . Willie v. State, 738 So.2d 217, 219 (Miss.1999) (quoting Menna v. New York, 423 U.S. 61, 62, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975)).

      . See Miss.Code Ann. § 47-5-193 (Rev.2004).

      . Compare Miss.Code Ann. § 47-5-193 (Rev. 2004) and Miss.Code Ann. § 47-5-193 (Supp. 2010).

      . The State also argues that this Court is procedural!/ barred from considering Fulg-ham’s vagueness argument, because she asserts it for the first time on appeal. We find that Fulgham did raise the vagueness argument in her petition for post-conviction relief before the trial court.

      . Jones, 552 So.2d at 824.

      . Edwards v. State, 800 So.2d 454, 460 (Miss.2001).

      . Id. at 461.

      . Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983).

      . Jordan v. De George, 341 U.S. 223, 231-32, 71 S.Ct. 703, 95 L.Ed. 886 (1951).

      . Christina Lockwood, Defining Indefiniteness: Suggested Revisions to the Void for Vagueness Doctrine, 8 Cardozo Pub.L. Pol’y & Ethics J. 225 (2010).

      . Compare Mayor & Bd. of Aldermen, City of Clinton v. Welch, 888 So.2d 416 (Miss.2004) (determining statute is facially vague), with Lewis v. State, 765 So.2d 493 (Miss.2000) (determining statute is not vague as applied to defendant's conduct).

      . Cash Distrib. Co. v. Neely, 947 So.2d 286, 294 (Miss.2007).

      . U.S. v. Nat’l Dairy Prods. Corp., 372 U.S. 29, 31-32, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963).

      . Id. at 33, 83 S.Ct. 594; see also U.S. v. Mazurie, 419 U.S. 544, 550, 95 S.Ct. 710, 42 L.Ed.2d 706 (1975) ("It is well established that vagueness challenges to statutes which do not involve First Amendment freedoms must be examined in the light of the facts of the case at hand.”)

      . Nat'l Dairy Prods., 372 U.S. at 37, 83 S.Ct. 594.

      . Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982).

      . Id. at 495, 497, 102 S.Ct. 1186.

      . Id. at 499, 102 S.Ct. 1186.

      . Id.

      . Kolender v. Lawson, 461 U.S. 352, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983).

      . Id. at 358, 361-62, 103 S.Ct. 1855.

      . City of Chicago v. Morales, 527 U.S. 41, 55, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999) (plurality opinion).

      . Roark & Hardee LP v. City of Austin, 522 F.3d 533, 548 (5th Cir.2008) (If the statute implicates a constitutional right, then the Court must apply a stricter vagueness test, i.e., a facial analysis.).

      . Id. at 551.

      . Id. at 553.

      . Id. at n. 21 (quoting U.S. v. Gaudreau, 860 F.2d 357, 359 (10th Cir.1988)).

      . Miss.Code Ann. § 47-5-193 (Rev.2004) (emphasis added).

      . Roark, 522 F.3d at 553.

      . We note that Justice Kitchens is correct in his assertion that the statute does not specify who determines whether an electronic device is “unauthorized.” But the only reasonable interpretation is that the entity having custody of the inmate determines what is "unauthorized.”

      . Fulgham was incarcerated in August of 2004 on a charge of capital murder. She was subsequently convicted and sentenced to death.

      . This statute has since been revised. See Miss.Code Ann. § 47-5-193 (Supp.2010).