State v. Alford
| Decision Date | 06 November 2009 |
| Docket Number | No. S-08-1040.,S-08-1040. |
| Citation | 774 N.W.2d 394,278 Neb. 818 |
| Parties | STATE of Nebraska, appellant and cross-appellee, v. Mario D. ALFORD, appellee and cross-appellant. |
| Court | Nebraska Supreme Court |
Tricia Freeman, Chief Deputy Sarpy County Attorney, for appellant.
Thomas P. Strigenz, Sarpy County Public Defender, for appellee.
Mario D. Alford was involved in a fight with fellow inmate Anthony Lukowski at the Sarpy County jail while awaiting trial for first degree murder. Alford was charged and convicted of assault by a confined person and with being a habitual criminal. In imposing Alford's sentence, the court gave Alford credit for the time served while simultaneously awaiting trial on both the first degree murder and the assault charges. Neb.Rev.Stat. § 28-932(2) (Reissue 2008) provides that a sentence for assault of a confined person "shall not include any credit for time spent in custody prior to sentencing unless the time in custody is solely related to the [assault charge]." Citing to this provision, as well as to Alford's criminal history, the State seeks reversal of this credit for time served as giving Alford an "excessively lenient" sentence under Neb.Rev.Stat. § 29-2320 (Reissue 2008). Alford also timely appeals.1
In support of the charge of assault by a confined person, the prosecution offered certified copies of the trial docket for the first degree murder charge for which Alford was in custody at the time of the assault. The documents demonstrated that after an initial hearing on the complaint, Alford was held without bond. Several entries reference Alford's being in the custody of the "SCSO," which we understand to mean the Sarpy County sheriff's office. In particular, an entry dated December 13 2007, states, "[Alford] is remanded into the custody of the SCSO pending further hearing." The judge's minutes continue through May 30, 2008, without a final disposition of the felony charge. In the exhibit for the jury, the State redacted all references to the nature of the charge.
Deputies Lloyd Schoolfield and David Weaver testified as witnesses to the assault. On the morning of February 10, 2008, Schoolfield was supervising the serving of the breakfast trays and the inmates of the Sarpy County jail were eating breakfast in their day areas. Alford and Lukowski were inmates in the same unit. Schoolfield had already served Alford's unit and was serving another unit nearby when he heard a noise. Schoolfield proceeded to where Alford and Lukowski were housed, and, through a window, he observed Alford and Lukowski locked in a fighting embrace.
Waiting for assistance to break up the fight, Schoolfield testified that he watched Alford free a hand and start "throwing punches to the head of Lukowski." When Weaver arrived to assist, the two deputies entered the unit and Schoolfield supervised the lockdown of the inmates not participating in the fight. By this time, Alford and Lukowski had fallen to the floor. Alford was underneath Lukowski with his arms around Lukowski's neck, holding Lukowski in a headlock to his chest. Weaver observed that Lukowski's arms were free, but that he did not hit Alford.
Alford continued to hold Lukowski in this manner even after Weaver approached and ordered him to let Lukowski go. Weaver repeated the order while applying the "mandibular angle pressure point." The first time Weaver did this, Alford winced, but did not let Lukowski go. After the second time, Alford released Lukowski.
When Alford and Lukowski got up, Schoolfield and Weaver observed that Lukowski had a bloody nose. Schoolfield testified that he had observed Lukowski's face when they had delivered the breakfast trays and that he had not observed any injuries before the fight occurred. Alford, in contrast, did not appear to be injured after the fight, and Alford told Schoolfield that he was not injured. Lukowski was sent to the jail's nurse.
Only one of the inmates in Alford's unit agreed to describe for Schoolfield the events leading up to the fight. Schoolfield testified that the inmate was no longer in the Sarpy County jail. Defense counsel believed that the inmate's description of the fight was favorable to Alford's defense. But when defense counsel asked Schoolfield what the inmate had said, the court sustained the State's hearsay objection. Defense counsel made an offer of proof that Schoolfield would testify that Alford had accused Lukowski of cheating in a poker game the night before and that, in response, Lukowski attacked Alford and began hitting him.
At trial, Lukowski testified that he had begun the physical altercation with Alford. Lukowski testified that on the morning of February 10, 2008, Alford was "running his mouth," so Lukowski told Alford to "stand up and shut up or do something about it." Lukowski testified that Alford then came toward him and that he felt threatened, so he swung at Alford, but missed. Lukowski testified that Alford did not immediately respond and that Lukowski started choking Alford. Lukowski testified that when Schoolfield arrived, he and Alford were facing each other and that Lukowski had one arm around Alford's upper back and neck and the other arm around his waist. Alford had both his hands around Lukowski's back. After that, Alford "broke my hands loose from around his neck and hit me in the face a few times and threw me to the ground and put me in a headlock and [the fight] got broke up by Deputy Weaver."
On cross-examination, Lukowski elaborated that he had also "head-butt[ed]" Alford a couple of times in the course of the fight. Furthermore, Lukowski stated that while Alford had him in a headlock on the floor, Lukowski was "still trying to get at his throat ... I was still trying to choke him out."
Lukowski testified that he received injuries, including a bloody nose and a black eye, as a result of being struck in the face by Alford. In a photograph taken of Lukowski after the fight, he appears to have a black eye and a bruised nose.
The court received, without objection, a statement made by Lukowski shortly after the incident. In that statement Lukowski did not mention choking Alford at all. Lukowski's statement described that Alford "rushed" toward him. In response, Lukowski swung at Alford, but missed. Lukowski stated that Alford "took advantage and I was hit in the eye, and nose and was taken to the floor and seconds later 2 officer's [sic] broke up the fight."
Referring to the statement, the prosecutor asked Lukowski when he had decided he had more to add. Lukowski answered that it was just 2 days prior to trial. The prosecutor also asked to whom Lukowski had given this additional information, and Lukowski answered that he had only told Alford's counsel. Upon further questioning, Lukowski confirmed that he had never shared this additional information with anyone at the jail.
The jury found Alford guilty of assault by a confined person. The court found that Alford was a habitual criminal and sentenced Alford to a term of imprisonment from 10 to 36 years. The court granted Alford credit for the 223 days spent in incarceration awaiting disposition of the assault charge. This incarceration had taken place simultaneously to time spent awaiting trial for the first degree murder charge.
The State asserts that the trial court erred by granting Alford credit for time served in pretrial and presentence incarceration.
Alford assigns that the trial court erred in (1) denying his motion in limine, (2) not giving his proposed jury instructions and giving jury instructions that were misleading and confusing, (3) entering judgment pursuant to a jury verdict that was based on insufficient evidence, (4) denying his motion for new trial, (5) finding he was a habitual criminal, and (6) ordering an excessive sentence.
When the State appeals and claims that a sentence imposed on a defendant is excessively lenient, the standard of review is whether the sentencing court abused its discretion in the sentence imposed.2
Whether a defendant is entitled to credit for time served is a question of law.3
Whether a jury instruction given by a trial court is correct is a question of law.4
Statutory interpretation presents a question of law, for which an appellate court has an obligation to reach an independent conclusion irrespective of the determination made by the court below.5
Because the jail time Alford served awaiting trial on a charge of assault by a confined person was simultaneous with jail time being served awaiting trial for first degree murder, the time was not "solely related" to the assault charge and the trial court lacked statutory authority under § 28-932(2) to give Alford credit for that time. Statutory language is to be given its plain and ordinary meaning.6 It is not within the province of the courts to read a meaning into a statute that is not there or to read anything direct and plain out of a statute.7 And we find the language of § 28-932(2) to be clear.
Section 28-932(2) provides that a sentence for assault by a confined person "shall not include any credit for time spent in custody prior to sentencing unless the time in custody is solely related to the offense for which the sentence is being imposed [for assault of a confined person]." "[T]ime spent in custody," by its plain language, is broad and does not distinguish between time spent awaiting conviction for the nonrelated charge and time spent as part of the sentence after conviction of the other charge. In other words, it encompasses both "jail time" and "prison time."8 Logically, if the time spent "in custody" awaiting trial on a charge of assault by a confined person is simultaneous to time spent awaiting trial on another charge, that...
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