                   IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2017-KA-00883-SCT

JULIAN HAWKINS a/k/a JULIAN MICHAEL
HAWKINS

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                        06/13/2017
TRIAL JUDGE:                             HON. ROBERT B. HELFRICH
TRIAL COURT ATTORNEYS:                   ALEXANDER IGNATIEV
                                         JACK LUCIAN DENTON
                                         DECARLO CHAS HOOD
COURT FROM WHICH APPEALED:               FORREST COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                 OFFICE OF THE STATE PUBLIC
                                         DEFENDER
                                         BY: HUNTER NOLAN AIKENS
                                             GEORGE T. HOLMES
ATTORNEY FOR APPELLEE:                   OFFICE OF THE ATTORNEY GENERAL
                                         BY: BILLY L. GORE
DISTRICT ATTORNEY:                       PATRICIA A. THOMAS BURCHELL
NATURE OF THE CASE:                      CRIMINAL - FELONY
DISPOSITION:                             AFFIRMED IN PART, VACATED IN PART,
                                         AND REMANDED - 10/25/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




      BEFORE KITCHENS, P.J., KING AND BEAM, JJ.

      KING, JUSTICE, FOR THE COURT:

¶1.   Julian Hawkins was transferred from the Forrest General Hospital Emergency Room,

where he was acting erratically and unusually, to Pine Grove Behavioral Health Center. At
Pine Grove, Hawkins attacked a nurse and struggled against those who were thereafter

holding him down. He was charged with two counts of simple assault on “medical

personnel.” The jury convicted him on one of those charges, and acquitted him on the

second. Hawkins appeals, centering his argument around alleged ineffective assistance of

trial counsel. Because this issue cannot be determined from only the facts contained in the

record before this Court, this Court affirms Hawkins’s conviction, and we allow him the

opportunity, if he wishes, to raise the issue in a petition for post-conviction relief. However,

because Hawkins was not properly indicted for the crime for which he was sentenced, we

vacate his sentence and remand for resentencing under the proper statute.

                        FACTS AND PROCEDURAL HISTORY

¶2.    In the fall of 2016, Julian Hawkins traveled from Ann Arbor, Michigan, to

Lumberton, Mississippi, to visit his father, Calvin Hart. Hawkins is a Navy veteran, and his

youngest brother had recently been killed; Hawkins was “going through issues.” During his

stay with Hart, Hawkins would talk to himself, knock on the wall, and “act out.” On

November 15, 2016, Hawkins went to spend the night with his grandfather. Hawkins’s

grandfather called Hart early in the morning of November 16, 2016, and reported that

Hawkins was at the neighbors’ house in his underwear banging on their door. Hart called

an ambulance, and the ambulance took Hawkins to Forrest General Hospital (Forrest

General) in Hattiesburg, where he was admitted to the Emergency Room (ER) at 6:53 a.m.

¶3.    While in the ER, Hawkins displayed erratic and violent behavior. The ER performed

a comprehensive drug test, and the only drug that came back positive was cannabinoids, or



                                               2
marijuana. Hawkins tried to leave several times; he attempted to drive away in an ambulance

and he attempted to obtain the keys to a police vehicle. When asked why he left, Hawkins

responded that “I was going to find the police. Its [sic] a code red situation and yall [sic]

needed blood.”      The licensed professional counselor (LPC) who saw Hawkins at

approximately 9:30 a.m. noted that he was confused, had delusions, and was paranoid, stating

that Hawkins “was just talking randomly and making no sense, believes that the government

is coming to get his father and him.” She also noted that he was disoriented and that he was

“Psychotic/Paranoid.” The LPC noted the positive marijuana test, but ultimately gave a

provisional diagnosis of “unspecified mood disorder.” The ER ultimately gave Hawkins the

drugs Geodon and Ativan via injection to sedate him and then put Hawkins on a psychiatric

hold. For some time after receiving the medicine, Hawkins was resting comfortably.

However, at approximately 4:15 p.m., Hawkins attempted to leave again, but was brought

back by “public safety” since he was under a psychiatric hold. Later, he threatened to throw

a cup of urine on an ER tech if the ER tech came in Hawkins’s room. The ER doctor

ultimately diagnosed Hawkins with “substance induced psychosis” and sent him to Pine

Grove Behavioral Health Center (Pine Grove) at approximately 5:30 p.m. on November 16,

2016.

¶4.     Hawkins arrived at Pine Grove, and at around 6:20 p.m., he jumped over a barrier to

the nurse’s station, wrapped a towel around the neck of nurse Holly Bounds, and began

choking her. Bounds testified that she believed that Hawkins was trying to kill her. Several

Pine Grove employees quickly tackled Hawkins to the ground and held him there for



                                             3
approximately ten minutes until police arrived. Hawkins continued to struggle, despite the

fact that, at some point, about eight employees were on top of him holding him down. During

this struggle, Hawkins twice bit nurse Illa Mills as she was attempting to prevent him from

biting the employee who was the primary person holding Hawkins down. Mills testified that

she was concerned about the transmission of diseases from the bites.

¶5.    Hawkins was indicted for two counts of simple assault on “medical personnel” under

Mississippi Code Section 97-3-7(1)(a)(iii) (Rev. 2014).1 It charged that Hawkins did

“unlawfully, feloniously and willfully attempt by physical menace to put” each of the nurses

“in fear of serious bodily harm” while each was a nurse acting within the scope of her duty

and office.

¶6.    At trial, the defense attempted to argue that the State could not prove the intent

element because the defendant was not in his right mind and/or because his state of mind was

caused by the drugs given to him involuntarily in the ER. The defense did not utilize any

expert opinion, but did elicit from one of the nurses that the drugs Hawkins was given may

cause confusion. The State repeatedly emphasized that the defendant had not raised an

insanity defense, stating in its cross-examination of Hawkins that “Your attorney didn’t think

that was justified in your circumstances given your medical history that you have any

significant medical history with psychosis. That’s not what they diagnosed you with, okay,



       1
        The indictment incorrectly charges Hawkins under Section “97-3-7(1)(C).” Section
97-3-7 was reorganized in 2012, and Section 97-3-7(1)(c) has not existed since that time.
The corresponding reorganized sections somewhat confusingly encompass Sections 97-3-
7(1)(a)(iii), 97-3-7(1)(b), and 97-3-7(14). Sections 97-3-7(1)(a)(iii) and 97-3-7(1)(b) carry
different sentences.

                                              4
so let’s leave that to your attorney ‘cause that’s not an issue. He didn’t file it. Okay?” In

closing arguments, the State argued

       Now, the other argument that the Defense has made is some type of mental
       condition, some type of diminished capacity, so he didn’t really know what he
       was doing. Well, here’s the problem of that. That’s the old insanity defense.
       That’s an affirmative defense. And if they were going to pursue that defense,
       they would have had to declare it way before we got to where we are now. I
       think you have seen how strenuously they argued. If there was any real
       question as to his mental capacity, don’t you believe that they would have
       demanded a psychological evaluation? Then there would have been an expert
       here to testify about, you know, whether he was hearing things or seeing
       things. Well, you don’t have any evidence to that, because they didn’t pursue
       that defense. They just simply kind of alluded to it throughout the trial. You
       know, the medicine made him crazy or, you know, some trauma in his life
       made him go through a downtime. It’s not a defense that’s before you.
       There’s no evidence to support it, so it doesn’t go into the deliberations room.
       You deliberate the evidence, and there is no evidence to that, so it can’t be
       deliberated.

Yet, when addressing why Hawkins was being held involuntarily, the State insinuated that

Hawkins was “crazy,” stating,

       Why in the world would a medical facility have someone be brought in by a
       family member who is having some issues and they let them walk out the
       door? If they walk out the door and cause injuries to anybody, who’s gonna
       get sued? If they walk out the door when he’s having these - - as he said, he’s
       seeing these visions. When he sees this vision on somebody on the street, he
       goes and kills them. If the hospital actually lets him out the door when a
       family member said he needed some assistance, if a doctor actually does that,
       what do you think happens? . . . Why did you let this crazy person go when
       you know he’s crazy? So what could they do? Send him to what his father
       wanted - - help.

The State also emphasized its belief that, due to the positive cannabinoids test, Hawkins

assaulted the nurses because he was voluntarily intoxicated, even going so far as to

essentially testify about the biochemical effects of marijuana while cross-examining



                                              5
Hawkins. The prosecutor asked Hawkins if he had smoked marijuana, and he stated that he

had when he had been in Michigan but that he had not during his time in Mississippi. The

prosecutor asked the question again, and upon Hawkins’s denial that he had smoked

marijuana while in Mississippi, the prosecutor stated “Cause it - - it was pretty strong in your

system and you had been out of Michigan for, like, two weeks.” The prosecutor went on to

testify that “[t]he lower [verbatim] that you stay away from marijuana, the lower the levels

are.” The prosecutor then opined, “The levels are pretty high.” The State gave no medical

basis for these statements, and the defense did not object to them. In closing argument, the

State emphasized that, after Hawkins had been in the hospital for twelve hours before the

attack, he was still intoxicated from the marijuana in his system, and the much more recent

drugs given him by the ER had no effect. The State maintained that “even if he was acting

out because of some type of drug that he took, that doesn’t get him off the hook for what he

did . . . . even if he was hearing things and seeing things, it was because he took something

voluntarily that made him see and hear things.” The State further argued,

       So what this issue - - what this was caused by why he was here - - got hold of
       some marijuana that THC, got a hold of some spice, and did something he
       shouldn’t have done. He was freaking out, smoking. . . . But guess what?
       That’s not a defense. That’s voluntary intoxication. The law says you can’t
       claim.

The State claimed, without producing medical expert testimony about the effects of these

drugs, that

       The only evidence you have before you is what the doctor says is drugs.
       Marijuana is there. THC. Whether it comes from marijuana or comes from
       spice, the results are the same. That’s why people say you’ve got to know
       where your marijuana comes from. You’ve got to know where you’re getting

                                               6
       it. ‘Cause if you get some that’s got spice in it, you’re gonna go crazy. That’s
       reality. . . . This case that this defendant voluntarily intoxicated himself.

¶7.    A jury instruction was given that voluntary intoxication was not a defense to the

crimes. The jury returned a verdict of guilty for Count I for the attack on Holly Bounds and

not guilty for Count II for the attack on Illa Mills. The court sentenced Hawkins, apparently

under Section 97-3-7(1)(b) (Rev. 2014), a subsection not mentioned in Hawkins’s

indictment, to five years in custody and to a fine of $2500. Hawkins appeals, arguing that

his trial counsel was ineffective. He argues that trial counsel should have requested expert

assistance, specifically an expert psychiatrist, to assist with the defense, because substantial

evidence had supported the defenses of insanity and involuntary intoxication.

                                         ANALYSIS

1.     Indictment and Sentence

¶8.    Hawkins does not challenge his indictment or sentence on appeal. However, this

Court may address plain errors it identifies. Miss. R. App. P. 28(a)(3); Thomas v. State, 126

So. 3d 877, 879 (Miss. 2013). The right to notice of criminal charges is embedded in both

our state and federal constitutions. U.S. Const. amend. VI; Miss. Const. art. 3, § 26; Miss.

Const. art. 3, § 27. “An indictment which fails to allege all essential elements of a crime runs

afoul of our constitutions and is void.” Thomas, 126 So. 3d at 879. If the facts alleged in

the indictment “do not constitute [] an offense within the terms and meaning of the law or

laws on which the accusation is based . . . the indictment is insufficient.” Id. Hawkins was

indicted under nonexistent Section “97-3-7(C)” and sentenced under Section 97-3-7(1)(b).

¶9.    Hawkins was on notice that the indictment charged him under Section 97-3-


                                               7
7(1)(a)(iii), because the indictment properly and thoroughly tracked the language in this

subsection. The punishment for a conviction under Section 97-3-7(1)(a)(iii) is “a fine of not

more than Five Hundred Dollars ($500.00) or by imprisonment in the county jail for not more

than six (6) months, or both.” Miss. Code Ann. § 97-3-7(1)(a)(iii). Section 97-3-7(1)(b), the

language of which the indictment did not track, provides that “a person convicted of simple

assault upon any of the persons listed in subsection (14) of this section under the

circumstances enumerated . . . shall be punished by a fine of not more than One Thousand

Dollars ($1,000.00) or by imprisonment for not more than five (5) years, or both.” Miss.

Code Ann. § 97-3-7(1)(b). Subsection 14 provides that “[a]ssault upon any of the following

listed persons is an aggravating circumstance for charging under subsections (1)(b) and

(2)(b) . . . : “emergency medical personnel . . . .” Miss. Code Ann. § 97-3-7(14) (Supp. 2016)

(emphases added). Notably, Hawkins’s indictment did not point specifically to Section 97-3-

7(1)(b), nor did it charge him with simple assault on emergency medical personnel; it used

the more general term “medical personnel.”

¶10.   In Thomas, a unanimous Court noted that the charged crime, felon in possession of

a prohibited weapon, is a statutory crime; thus, an indictment must charge a defendant with

all essential elements of that crime. Thomas, 126 So. 3d at 879. The statute criminalized

felons possessing only four specific types of knife, yet Thomas’s indictment charged him

only with possessing “a knife.” Id. at 878-80. Thomas could have legally possessed “vast

varieties” of knives. Id. at 879. Thus, the Court found that the failure to specify the type of

knife Thomas was in possession of amounted to a failure to charge Thomas with an essential



                                              8
element of the crime. Id. at 880.

¶11.   Under Section 97-3-7(1)(a), the Legislature criminalized simple assault against any

person. Under Sections 97-3-7(1)(b) and (14), the Legislature specified that attacking certain

specified categories of persons was an aggravating circumstance that was punishable by a

greater sentence. Among those categories of persons designated by the Legislature is

“emergency medical personnel.” Had the Legislature desired to expand this aggravating

circumstance to all medical personnel, it certainly could have, but the Legislature specifically

restricted the aggravating circumstance to only emergency medical personnel. A simple

assault on non-emergency medical personnel has not been designated by the Legislature as

necessitating the greater sentence. Non-emergency medical personnel are not a category of

persons for which assault requires an aggravating circumstance and an increased sentence.

Hawkins’s indictment did not track the language of Sections 97-3-7(1)(b) or (14),

impermissibly broadening the scope of what the Legislature statutorily deemed an

aggravating circumstance.2 Nor did the indictment specifically cite Section 97-3-7(1)(b) or

(14). As such, Hawkins was not on notice that he would be convicted and sentenced under

Section 97-3-7(1)(b), and the sentence under that provision is improper. Hawkins was on

notice, however, that he was being tried for simple assault under Section 97-3-7(1)(a)(iii).

We consequently vacate Hawkins’s sentence and remand the case for resentencing under

Section 97-3-7(1)(a).



       2
       It is also of note that the nurse Hawkins assaulted was working at a Behavioral
Health Center and was not in any sort of Emergency Room, Emergency Department, or
ambulance.

                                               9
2.     Ineffective Assistance of Counsel

¶12.   Hawkins argues that without an expert the defense was unable to even determine

whether the insanity defense was viable. Both parties argue that the record is sufficient for

a determination of whether counsel was ineffective. “In order to prevail on an ineffective-

assistance-of-counsel claim, a defendant must prove that his attorney’s performance was

deficient, and that the deficiency was so substantial as to deprive the defendant of a fair

trial.” Dartez v. State, 177 So. 3d 420, 423 (Miss. 2015) (citing Strickland v. Washington,

466 U.S. 668, 687-96, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). Thus, the defendant must

prove that counsel’s performance was both deficient and prejudicial. Dartez, 177 So. 3d at

423. Normally, ineffective assistance of counsel claims should be brought during post-

conviction proceedings. Id. at 422-23. If insufficient evidence and/or information exists in

the trial record for the appellate court to adequately address the claim, this Court should deny

relief while preserving the defendant’s right to argue ineffective assistance of counsel

through a petition for post conviction relief (PCR). Id. at 423. We may address an

ineffective assistance of counsel claim on direct appeal only if the “issues are based on facts

fully apparent from the record.” Id.

¶13.   It is clear from the record that Hawkins’s mental state and/or involuntary intoxication

were at issue. But without any expert opinions in the record, it is impossible to determine

deficiency and/or prejudice. This Court cannot know whether an expert would pronounce

Hawkins insane or sane at the time of the offense. Thus, it is impossible to ascertain whether

counsel was deficient for not consulting such an expert, and it is impossible to know if the



                                              10
failure to consult an expert prejudiced Hawkins. Similarly, without expert opinion regarding

drugs, it is impossible to ascertain whether any drugs taken or given could have caused

Hawkins’s mental state to be altered. The State argued heavily that Hawkins was voluntarily

intoxicated, and the defense did not put on an expert to counter the State’s argument about

what Hawkins’s positive marijuana test could mean, what the half-life is for cannabinoid

intoxication, and what side effects, if any, might be experienced by a marijuana user. No

expert testified about the drugs Hawkins was given involuntarily.3 Nothing in the record

illustrates the side effects of those drugs, the likelihood of any adverse side effects, the

interaction, if any, between those drugs and marijuana, or the half-life of those drugs and

how long they remain in the system. An expert may have testified that those drugs would

have been completely out of Hawkins’s system at the time of the attack, or an expert may

have testified that those drugs have a chance of causing mental issues and were likely to have

done so in this case. Without any expert opinion either way on these issues, it is impossible

to determine either deficiency or prejudice.

¶14.   In Dartez, this Court faced a similar issue: the defendant had argued that counsel was

ineffective for failing to raise an insanity defense. Dartez, 177 So. 3d at 422. This Court

found that the issue involved facts not fully apparent from the record. Id. at 423. Similarly,

the issue before this Court in the case at hand cannot be resolved either way without facts that

are not fully apparent from the trial record, namely expert opinions one way or the other.




       3
        Unquestionably, he received these drugs well after any alleged cannabinoid usage.

                                               11
This issue is therefore inappropriate to address on direct appeal.4 This Court affirms

Hawkins’s conviction. We preserve his ability to raise ineffective assistance of counsel

through a petition for post-conviction relief.

                                       CONCLUSION

¶15.   Because Hawkins’s ineffective assistance of counsel claim cannot be determined

without facts outside the record before this Court, we affirm Hawkins’s simple assault

conviction, and we allow him to assert this claim through a petition for post-conviction relief.

However, because Hawkins was improperly sentenced under a subsection not properly

charged in his indictment, we vacate his sentence and remand the case for resentencing under

Section 97-3-7(1)(a).

¶16. AFFIRMED IN PART, VACATED IN PART, AND REMANDED.

   WALLER, C.J., RANDOLPH AND KITCHENS, P.JJ., COLEMAN,
MAXWELL, BEAM, CHAMBERLIN AND ISHEE, JJ., CONCUR.




       4
        Hawkins also argues on appeal that his conviction is against the overwhelming
weight of the evidence because he was clearly either insane and/or involuntarily intoxicated.
As discussed, no expert testified regarding these issues, and whether Hawkins was insane
and/or involuntarily intoxicated is not readily apparent from the record. Thus, this claim is
without merit.

                                              12
