IN THE SUPREME COURT OF MISSISSIPPI
NO. 2009-CA-00971-SCT
KRISTI FULGHAM
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT: 05/07/2009 TRIAL JUDGE: HON. JAMES T. KITCHENS, JR. COURT FROM WHICH APPEALED: OKTIBBEHA COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: R. GREGG MAYER JAMES W. CRAIG ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE DISTRICT ATTORNEY: FORREST ALLGOOD NATURE OF THE CASE: CIVIL - POST CONVICTION RELIEF DISPOSITION: REVERSED AND REMANDED - 11/05/2010 MOTION FOR REHEARING FILED: MANDATE ISSUED:
EN BANC.
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 “furnish[ing], attempt[ing] to furnish,
or assist[ing] in furnishing to any offender . . . an unauthorized electronic device.” 1 She now
contends that she pleaded guilty to an unconstitutionally vague statute. Finding the record
1 Miss. Code Ann. § 47-5-193 (Rev. 2004). 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
I. 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
2 the statute under which she was convicted and sentenced.2 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.3
¶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.” 4 And a conviction under an
unconstitutionally vague statute violates the Due Process Clause,5 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 “‘[w]here 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
2 Miss. Code Ann. § 99-39-5(1)(c) (Rev. 2007). 3 Miss. Code Ann. § 99-39-21(1) (Rev. 2007). 4 Smith v. State, 477 So. 2d 191, 195 (Miss. 1985). 5 Jones v. City of Meridian, 552 So. 2d 820, 824 (Miss. 1989); U.S. Const. amend. XIV § 1.
3 aside even if the conviction was entered pursuant to a counseled plea of guilty.’” 6 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.7 She points to the fact that the statute has been twice amended to include the
terms “cell phone” and “charger.”8 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.9
¶8. As previously noted, an unconstitutionally vague statute violates the Due Process
Clause of the Fourteenth Amendment to the U.S. Constitution.10 Because there is a strong
presumption that a legislative enactment is valid, the party challenging a statute’s
6 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)). 7 See Miss. Code Ann. § 47-5-193 (Rev. 2004). 8 Compare Miss. Code Ann. § 47-5-193 (Rev. 2004) and Miss. Code Ann. § 47-5-193 (Supp. 2010). 9 The State also argues that this Court is procedurally barred from considering Fulgham’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. 10 Jones, 552 So. 2d at 824.
4 constitutionality must prove his or her case beyond a reasonable doubt.11 All doubts are
resolved in favor of the validity of the statute.12 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.” 13 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.” 14
¶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.15 Furthermore, this Court has used each analysis in separate cases without
instruction as to application.16 So, we set forth some notable decisions by the U .S. Supreme
11 Edwards v. State, 800 So. 2d 454, 460 (Miss. 2001). 12 Id. at 461. 13 Kolender v. Lawson, 461 U.S. 352, 357, 102 S. Ct. 1855, 75 L. Ed. 2d 903 (1983). 14 Jordan v. De George, 341 U.S. 223, 231-32, 71 S. Ct. 703, 95 L. Ed. 886 (1951). 15 Christina Lockwood, Defining Indefiniteness: Suggested Revisions to the Void for Vagueness Doctrine, 8 Cardozo Pub. L. Pol’y & Ethics J. 225 (2010). 16 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).
5 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.17
¶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.18 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.” 19 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.” 20
¶11. In Village of Hoffman Estates, the Court set forth a test governing a facial challenge
to an allegedly vague statute.21 The Court ruled that the “complainant must demonstrate that
the law is impermissibly 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.” 22 However, the Court noted that “the most important factor affecting the clarity that
17 Cash Distrib. Co. v. Neely, 947 So. 2d 286, 294 (Miss. 2007). 18 U.S. v. Nat’l Dairy Prods. Corp., 372 U.S. 29, 31-32, 83 S. Ct. 594, 9 L. Ed. 2d 561 (1963). 19 Id. at 33; 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.”) 20 Nat’l Dairy Prods., 372 U.S. at 37. 21 Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 102 S. Ct. 1186, 71 L. Ed. 2d 362 (1982). 22 Id. at 495, 497.
6 the Constitution demands of a law is whether it threatens to inhibit the exercise of
constitutionally protected rights.” 23 If it does, then “a more stringent vagueness test should
apply.” 24
¶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.25 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.26 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.27
¶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.28 2. If the statute implicates no constitutionally
23 Id. at 499. 24 Id. 25 Kolender v. Lawson, 461 U.S. 352, 103 S. Ct. 1855, 75 L. Ed. 2d 903 (1983). 26 Id. at 358, 361-62. 27 City of Chicago v. Morales, 527 U.S. 41, 55, 119 S. Ct. 1849, 144 L. Ed. 2d 67 (1999) (plurality opinion). 28 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.).
7 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.29 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.30 “‘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.’” 31
¶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 sheriff’s 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.32
We note that the statute in effect in 2004 contained no definition for “unauthorized electronic
device.”
29 Id. at 551. 30 Id. at 553. 31 Id. at n.21 (quoting U.S. v. Gaudreau, 860 F.2d 357, 359 (10th Cir. 1988)). 32 Miss. Code Ann. § 47-5-193 (Rev. 2004) (emphasis added).
8 ¶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 Fulgham’s conduct to determine whether she had
notice of what conduct was prohibited and whether law enforcement had definite standards
to avoid arbitrary enforcement.33 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 case 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 Fulgham. Therefore, we remand for an evidentiary 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,” 34 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 evidentiary 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
33 Roark, 522 F.3d at 553. 34 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.”
9 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.35 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 sheriff’s 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
35 Fulgham was incarcerated in August of 2004 on a charge of capital murder. She was subsequently convicted and sentenced to death.
10 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).36
¶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
36 This statute has since been revised. See Miss. Code Ann. § 45-5-193 (Supp. 2010).
11 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
12 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
13 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 Sheriff’s 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 Oktibbeha County Sheriff’s 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
14 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 evidentiary 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, 341 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 Sheriff’s 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
15 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).
16 ¶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 “furnish[ing] 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
17 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 Fulgham 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 evidentiary 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.