State v. Taylor
| Decision Date | 28 September 2001 |
| Docket Number | No. S-00-1139.,S-00-1139. |
| Citation | 262 Neb. 639,634 N.W.2d 744 |
| Parties | STATE of Nebraska, Appellee, v. Joseph TAYLOR, Appellant. |
| Court | Nebraska Supreme Court |
James R. Mowbray and Kelly S. Breen, of the Nebraska Commission on Public Advocacy, for appellant.
Don Stenberg, Attorney General, and Susan J. Gustafson, for appellee.
On July 27, 2000, Joseph Taylor, an inmate at the Department of Correctional Services (DCS), was found guilty by a jury of third degree assault pursuant to Neb. Rev.Stat. § 28-931 (Reissue 1995) (assault upon "a peace officer or employee of the Department of Correctional Services"). On October 5, at a separate enhancement hearing pursuant to Neb.Rev.Stat. § 29-2221 (Reissue 1995), Taylor was found by the court to be a habitual criminal. Taylor was sentenced to not more than nor less than 10 years in prison.
On December 23, 1998, Taylor was charged pursuant to Neb.Rev.Stat. § 28-930 (Reissue 1995) with one count of second degree assault upon Joseph Manley, an employee of DCS. Taylor was also charged with being a habitual criminal. On July 15, 1999, after initially pleading guilty, Taylor submitted a motion requesting leave from the court to withdraw his guilty plea and a motion to quash both counts of the indictment. The court granted both motions. At the hearing on the motion to quash, Taylor's counsel contended that charging Taylor as a habitual criminal constituted improper double enhancement of the assault charge. The court overruled the motion to quash.
At trial, Manley testified that on February 18, 1998, the date of the incident, he was employed at the Lincoln Correctional Center as a unit caseworker in the "Protective Custody Unit" or "A Unit." Manley explained that the A Unit is divided into two sections or sides, A-1 and A-2, with each unit housing approximately 60 prisoners. On February 18, Manley was assigned to section A-2 of the A Unit. His responsibilities included supervising the inmates during exercise time, getting the inmates in and out of their cells, and lining the inmates up to be escorted to the cafeteria. On the day of the incident, he was working a 6 a.m. to 2 p.m. shift.
At 8:20 a.m., Manley was sitting in the section A-2 office, working at his desk. Taylor came to the doorway and asked about some paperwork Taylor needed which was being prepared by Manley's supervisor. Taylor was holding a plastic tumbler of hot coffee in his hand. Manley told Taylor he knew nothing about the paperwork. Taylor became upset and told Manley that "he didn't like [his] attitude." Manley stood up and asked Taylor to leave. Taylor instead came inside the office and called Manley a "chicken shit."
Manley removed the radio microphone from his belt and called for assistance. As Manley was looking down to replace the microphone on his belt clip, Taylor threw his coffee in Manley's face. Taylor then began striking Manley with his fists and kicking him until another inmate pulled Taylor away from Manley. A response team responded to Manley's call for assistance and arrived shortly after Taylor had been pulled from Manley. Manley suffered first and second degree burns over the left side of his face and neck, and additional minor injuries to his head. He was treated at a Lincoln hospital.
Taylor testified in his own defense. In substance, Taylor testified that the coffee was accidentally spilled after Manley placed his hands on Taylor to remove him from the office.
At the conclusion of the evidence, the trial court instructed the jury, inter alia, on the elements of second degree and third degree assault of an officer pursuant to §§ 28-930 and 28-931. Taylor requested an additional instruction on general third degree assault pursuant to Neb.Rev.Stat. § 28-310 (Reissue 1995). Section 28-310 states:
A Class I misdemeanor is punishable by up to 1 year's imprisonment, a $1,000 fine, or both. Neb.Rev.Stat. § 28-106 (Reissue 1995). The court denied Taylor's request for an instruction on general third degree assault.
The jury found Taylor guilty of third degree assault pursuant to § 28-931, which at the time of Taylor's offense stated:
A Class IV felony is punishable by up to 5 years' imprisonment, a $10,000 fine, or both. Neb.Rev.Stat. § 28-105 (Reissue 1995).
A separate habitual criminal enhancement hearing was held pursuant to § 29-2221(1), which states in relevant part:
Whoever has been twice convicted of a crime, sentenced, and committed to prison, in this or any other state or by the United States or once in this state and once at least in any other state or by the United States, for terms of not less than one year each shall, upon conviction of a felony committed in this state, be deemed to be an habitual criminal and shall be punished by imprisonment in a Department of Correctional Services adult correctional facility for a mandatory minimum term of ten years and a maximum term of not more than sixty years....
At the enhancement hearing, the State offered undisputed evidence showing that Taylor had three previous convictions which satisfied the criteria set out in § 29-2221. The court found that Taylor was a habitual criminal and sentenced Taylor to not more than nor less than 10 years' imprisonment pursuant to § 29-2221. Taylor appeals.
Taylor asserts, rephrased and renumbered, that the trial court erred in (1) failing to instruct the jury on third degree assault pursuant to § 28-310 and (2) failing to quash the indictment against Taylor as violating due process, equal protection, and this court's holding in State v. Hittle, 257 Neb. 344, 598 N.W.2d 20 (1999). For the sake of completeness, we note that although Taylor mentions due process in his assignments of error, he fails to present any argument regarding due process in his brief. Accordingly, we will not address this issue. Generally, errors that are assigned but not argued will not be addressed by an appellate court. State v. Dunster, ante 262 Neb. p. 329, 631 N.W.2d 879 (2001).
Whether jury instructions given by a trial court are correct is a question of law. State v. Johnson, 261 Neb. 1001, 627 N.W.2d 753 (2001).
Regarding questions of law presented by a motion to quash, an appellate court is obligated to reach a conclusion independent of the determinations reached by the trial court. See State v. Hill, 255 Neb. 173, 583 N.W.2d 20 (1998).
[3,4] Taylor contends the trial court committed prejudicial error in failing to instruct upon general third degree assault, pursuant to § 28-310, as a lesser-included offense of third degree assault under § 28-931. A court must instruct on a lesser-included offense if (1) the elements of the lesser offense for which an instruction is requested are such that one cannot commit the greater offense without simultaneously committing the lesser offense and (2) the evidence produces a rational basis for acquitting the defendant of the greater offense and convicting the defendant of the lesser offense. State v. Johnson, supra.
Where the prosecution has offered uncontroverted evidence on an element necessary for a conviction of the greater offense but not necessary for the lesser offense, a duty rests on the defendant to offer at least some evidence to dispute this issue if he or she wishes to have the benefit of a lesser-offense instruction. Id.
In State v. Cebuhar, 252 Neb. 796, 567 N.W.2d 129 (1997), the defendant asserted that the trial court should have instructed the jury on third degree assault under § 28-310 as a lesser-included offense of third degree assault under § 28-931. In Cebuhar, 252 Neb. at 805, 567 N.W.2d at 135, we stated:
Assuming that third degree assault may, under certain circumstances, be a lesser-included offense of third degree assault on a peace officer, we have held that it is not prejudicial error to not instruct upon a lesser-included offense when the evidence entirely fails to show an offense of a lesser degree than that charged in the information.
We then went on to conclude in Cebuhar that because there was no dispute in the evidence at trial that the victim was a peace officer engaged in his official duties at the time of the assault, the district court correctly refused to instruct the jury on assault under § 28-310.
The undisputed evidence at trial in this case establishes that Manley was an employee of DCS and that Manley was working as a DCS caseworker at the time of the assault. Nonetheless, Taylor argues that there was a question of fact as to whether Manley was engaged in his official duties when the incident occurred. Taylor asserts that during the incident, Manley attempted to remove Taylor by placing his hands upon Taylor. Taylor then argues that because Manley was not "trained nor authorized by his employer to lay his hands upon inmates to control or compel inmate compliance," brief for appellant at 13, Manley was not engaged in his official duties. Assuming for the purpose of argument that Manley did place his hands on Taylor, such a fact would raise only an...
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