State v. Urbano

• Decision Date: 12 February 1999
• Docket Number: No. S-98-555,S-98-555
• Citation: State v. Urbano, 589 N.W.2d 144, 256 Neb. 194 (Neb. 1999)
• Court: Nebraska Supreme Court
• Parties: STATE of Nebraska, appellee, v. Chamu URBANO, also known as Urbano Chamu, appellant.

Page 144

589 N.W.2d 144

256 Neb. 194

STATE of Nebraska, appellee, v. Chamu URBANO, also known as Urbano Chamu, appellant.

No. S-98-555.

Supreme Court of Nebraska.

Feb. 12, 1999.

Syllabus by the Court

1. Jury Instructions: Proof: Appeal and Error. In order to establish reversible error from a court's refusal to give a requested instruction, an appellant has the burden to show that (1) the tendered instruction is a correct statement of the law, (2) the tendered instruction is warranted by the evidence, and (3) the appellant was prejudiced by the court's refusal to give the tendered instruction.

2. Statutes: Appeal and Error. Statutory interpretation is a matter of law in connection with which an appellate court has an obligation to reach a conclusion independent of that of the trial court in a judgment under review.

3. Sentences: Appeal and Error. A sentence imposed within statutory limits will not be disturbed on appeal absent an abuse of discretion. An abuse of discretion takes place when the sentencing court's reasons or rulings are clearly untenable and unfairly deprive a litigant of a substantial right and a just result.

4. Jury Instructions. As a general rule, in giving instructions to the jury, it is proper for the trial court to describe the offense in the language of the statute.

5. Trial: Evidence: Proof. The nature of an affirmative defense is such that the defendant has the initial burden of going forward with evidence of the defense. When the defendant has produced sufficient evidence to raise the defense, the issue is then one which the State must disprove.

6. Self-Defense. Justifications for the use of force in self-defense are statutorily defined.

7. Jury Instructions. A trial court is not obligated to instruct the jury on matters which are not supported by evidence in the record.

8. Insanity: Mental Health: Intent. Although there is but one type of insanity which will support a finding of not guilty or not responsible by reason of insanity, there are a variety of mental conditions which bear upon the ability to form a specific intent.

9. Jury Instructions: Intent. A trial court need not specially instruct the jury regarding the defense of diminished capacity if the court has otherwise properly instructed the jury regarding the intent which is an element of the crime charged.

10. Criminal Law: Statutes: Sentences. Where a criminal statute is amended by mitigating the punishment, after the commission of a prohibited act but before final judgment, the punishment is that provided by the amendatory act unless the Legislature has specifically indicated otherwise.

11. Sentences: Final Orders: Appeal and Error. A sentence is not a final judgment until the entry of a final mandate of an appellate court if an appeal is taken.

12. Statutes: Public Officers and Employees: Legislature. The Revisor of Statutes is obligated by law to print and publish the laws as enacted by the Legislature and to not exercise discretion in excising a portion of the law.

13. Sentences. In imposing a sentence, a sentencing judge should consider the defendant's age, mentality, education, experience, and social and cultural background, as well as his or her past criminal record or law-abiding conduct, motivation for the offense, nature of the offense, and the amount of violence involved in the commission of the crime.

Dennis R. Keefe, Lancaster County Public Defender, and Robert G. Hays, Lincoln, for appellant.

Don Stenberg, Attorney General, and Mark D. Starr, Lincoln, for appellee.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLERLERMAN, JJ.

MILLER-LERMAN, J.

In this direct appeal, Chamu Urbano, also known as Urbano Chamu, appeals his conviction and sentence for assault committed by a confined person, a violation of Neb.Rev.Stat. § 28-932 (Reissue 1995). We affirm Urbano's conviction and the sentence imposed upon him, as modified. In rendering our decision, we consider the impact of recent statutory changes to the penalties applicable to Class IV felony convictions considered on direct appeal.

I. STATEMENT OF FACTS

Urbano is an inmate at the Nebraska State Penitentiary. On June 13, 1997, Urbano was housed in the "control unit," a special housing unit within the penitentiary for inmates who had committed disciplinary violations. Qualified health professionals had determined that regulated daily doses of prescription medication would be beneficial to Urbano, including curbing aberrant behaviors such as exhibitionistic exposure of his genitals and violent verbal outbursts. Urbano often refused to voluntarily take the prescribed medication. In the early part of June 1997, a court entered an order authorizing penitentiary officials to administer the prescribed medication to Urbano. This order was mentioned by several trial witnesses, but a copy of it was not entered into evidence.

At approximately 1 p.m. on June 13, 1997, penitentiary personnel asked Urbano to take his medication voluntarily. Urbano stated that he would not do so. A team of penitentiary personnel then gathered to perform a "forced cell move," sometimes referred to as a "takedown." At least nine penitentiary employees are required for a forced cell move team. Five guards are assigned to physically move the inmate: one guard for each of the inmate's arms and legs and one guard to walk ahead of the inmate. A team member is present as a "spokesman" to "talk to the camera" used to videotape the forced cell move, to facilitate a complete video record of the move. One team member controls the opening and closing of doors in the control unit. One team member is specifically assigned to videotape the forced cell move process, and another team member acts as the team's supervisor. Because a forced cell move is, by its nature, a physically confrontational process, the penitentiary's team members wear "riot gear" during forced cell moves. This gear consists of a helmet with face shield, a thick vest to protect the team member's torso, elbow pads, and protective gloves. The lower portions of team members' forearms are unprotected by the riot gear.

Team members testified at trial that as they gathered in preparation for the forced cell move, Urbano remained in his cell, shouting. In a videotape of the forced cell move entered into evidence at trial, Urbano can be heard talking loudly throughout the cell move, although his actual comments are unintelligible. Team members testified that Urbano used foul language and kept repeating that he was a man, that he did not need medication, and that team members would "pay the consequences" for forcing him to take the medication.

Before the team members entered Urbano's cell, a team member again asked Urbano if he would voluntarily take his medication and Urbano was advised that if he would not do so, the team members would use force on Urbano to allow the court-ordered injection of medication. Urbano again refused the medication. Team members then assumed their assigned positions, forcibly restrained Urbano, and carried him into the "bull pen," an open area adjoining the control unit which separates it from the general inmate population areas. Urbano continuously twisted and struggled, shouting profanity.

Cpl. Debbie Finke Proctor, a penitentiary employee, was assigned to restrain one of Urbano's arms during this forced cell move. She had assisted in at least six prior forced cell moves involving Urbano. In the June 13, 1997, cell move of Urbano, Proctor felt someone obstruct the movement of one of her legs. She assumed her leg had been grabbed by a fellow team member in error, and she looked away briefly while still restraining Urbano's arm. As Proctor rapidly turned back to Urbano, she saw him preparing to bite the portion of her left forearm which was not protected by riot gear. Proctor tried to pull her arm away, but she was unable to do so before Urbano made contact with her arm, biting down hard on it. Proctor managed to extricate her arm from Urbano's teeth without halting the progress of the forced cell move. The cell move team transported Urbano to the bull pen, where a nurse injected Urbano with the prescribed drug which was the subject of the court order.

After the forced cell move of Urbano was completed, Proctor showed another team member the injury to her left arm where Urbano had bitten her. Bruises were already becoming evident, and the skin was broken at the site where she had been bitten. Proctor's teammate suggested that she seek medical attention. Proctor was seen at Lincoln General Hospital. The medical care prescribed for Proctor, which she followed, included a tetanus shot, antibiotics, and a regimen of painfully vigorous wound cleansing several times daily for 2 weeks. By the time of trial, 10 months after the incident, the abrasion and bruises on Proctor's left arm had healed, but a scar from the bite wound was still evident. Proctor testified that she had her blood tested periodically for the 6 months following Urbano's bite on her arm, because Urbano had tested positive for hepatitis C and Proctor's physicians were concerned that Urbano might have infected her when he bit her arm.

Urbano was charged on September 27, 1998, with assault by a confined person, which at that time was a Class IV felony, in violation of § 28-932. The case was tried to a jury on February 26 and 27, 1998. Urbano was personally present at all phases of the proceedings with his counsel and a court-appointed interpreter.

At trial, Urbano claimed that he refused to take his medication because the shots administered to him were painful and "[i]t's just like killing my mind." Urbano stated that the medication caused him to be depressed and lethargic and to gain weight. The essence of his defense was that he acted in self-defense and that he did not have the requisite intent to form the crime of assault by a confined person. Urbano testified that in refusing to voluntarily take the...