North Carolina Criminal Law NC Criminal Law

The court of appeals’ recent decision in State v. Pierce, __ N.C. App. __ (October 18, 2011), analyzed whether a defendant could properly be convicted of second degree murder for the death of a law enforcement officer who was speeding to assist another officer who in turn was chasing the defendant as he fled in his vehicle.  The court’s analysis of malice, the foreseeability of such injury and the relevance of the victim’s contributory negligence struck me as worthy of highlighting in a post.

Here’s what happened:  Wilmington Police Corporal Richards attempted to stop defendant’s sports utility vehicle on suspicion that its occupants recently had engaged in a drug transaction.  The defendant initially pulled to the side of the road, but drove away before Corporal Richards could get out of his patrol car.

Corporal Richards pursued the defendant, while informing the dispatcher and nearby officers of the chase and its location. During Corporal Richards’ pursuit, the defendant drove at 65 mph in a residential area with a speed limit of 25 mph and bags of marijuana were thrown from the car. Wilmington Police Officer Matthews, who was a few miles away, responded to Corporal Richards’ radioed report by driving toward the area of the chase at “high speeds.”  Along the way, Officer Matthews swerved to avoid debris in the road, lost control of his vehicle, and died after his vehicle ran off the road and hit a stand of trees.

Among the arguments the defendant raised on appeal was that the trial court erred by denying his motion to dismiss the second degree murder charge as there was insufficient evidence of malice and insufficient evidence that his flight from Corporal Richards caused Officer Matthews’ death. The court of appeals disagreed.

The court rejected the defendant’s contention that the evidence of malice was insufficient, citing as support its statement in State v. Lloyd, 187 N.C. App. 174 (2007), that “‘the very act of fleeing from the police certainly constitutes malice.’”  Slip op. at 6 (quoting Lloyd , 187 N.C. App. at 180). The court compared the defendant’s conduct in the instant case with the conduct found sufficient to establish malice in State v. Bethea, 167 N.C. App. 215, 218 (2004), a case in which the defendant drove with a revoked license, fled law enforcement officers, sped through a stop light and stop signs, drove up to 100 mph, crossed into the oncoming traffic lane, and turned his car lights off on dark rural roads while traveling 90 to 95 miles per hour. The Bethea court concluded that the defendant’s actions, along with a “mind unclouded by intoxicating substances that might have hindered his ability to appreciate the dangers of his actions,” showed an “‘intent to perform the act of driving in such a reckless manner as reflects knowledge that injury or death would likely result, thus evidencing depravity of mind.’” Id. at 219-20. The Pierce court likewise concluded that the defendant’s intentional flight from Corporal Richards in the instant case reflected knowledge that injury or death would likely result and manifested depravity of mind and disregard of human life.  Thus, the court found the evidence sufficient to allow the jury to infer malice.

The defendant argued that the State could not rely upon his conduct during the police chase to establish malice for purposes of a second degree murder prosecution arising from the death of Officer Matthews, since Officer Matthews was not chasing the defendant when he crashed his car and died.  While recognizing that malice requires conscious indifference to consequences when the probability of harm to another within the circumference of such conduct is reasonably apparent, the court held that it could not conclude that the harm that befell Officer Matthews “was so far beyond the circumference of Pierce’s reckless actions as to absolve Pierce of liability for Officer Matthews’ death.”  Slip op. at 8. The court deemed foreseeable other officers’ participation in the pursuit of the defendant and held that “Pierce’s reckless flight, Officer Matthews’ proximity to the chase, and the danger inherent in a motor vehicle pursuit” were sufficient evidence of “Pierce’s conscious indifference to the reasonably apparent probability of harm to an officer such as Officer Matthews.” Slip. op. at 9.

The defendant further contended that there was insufficient evidence that his flight from Corporal Richards was the proximate cause of Officer Matthews’ death.  Noting that proximate cause is a cause (1) that “in a natural and continuous sequence and unbroken by any new and independent cause, produces an injury; (2) without which the injury would not have occurred; and (3) from which a person of ordinary prudence could have reasonably foreseen that such a result, or some similar injurious result, was probable,” the court determined that the evidence was sufficient to establish proximate cause.

The court reasoned:  Defendant fled from Corporal Richards’ lawful attempt to stop him, creating a police exigency.  Officer Matthews, a nearby officer, was informed of the exigency and sped to provide assistance and apprehend the defendant.  On his way, Officer Matthews swerved to avoid an object in the road, and, because of the speed at which he was traveling to join the pursuit of the defendant, he ran off the road into the trees, and was killed. The court viewed this evidence as sufficient to establish that (1) Officer Matthews’ death would not have occurred if the defendant had remained stopped when Corporal Richards pulled him over; and (2) an injurious result such as Officer Matthews’ death was reasonably foreseeable under the circumstances.  Slip op. at 10. Thus, court rejected the defendant’s argument that the court erred in denying his motion to dismiss the second degree murder charge on the grounds that there was insufficient evidence to show that his flight proximately caused Officer Matthews’ death.

Defendant also argued that his conviction for second-degree murder should be overturned because the trial court “unconstitutionally barred him from presenting a full defense by excluding evidence tending to show that Officer Matthews was negligent in speeding to the pursuit and, therefore, was the cause of his own death.” Noting that “‘contributory negligence [] has no place in the law of crimes,’” the court explained that Officer Matthews’ alleged negligent conduct could absolve the defendant of criminal liability only if Officer Matthews’ conduct so entirely intervened or superseded the defendant’s negligence that it alone produced the injury.  The court determined even if Officer Matthews was negligent, no reasonable person could conclude that his conduct, undertaken in response to an exigency created by the defendant, was the sole cause of his death.  The court of appeals therefore concluded that the trial court’s decision to exclude evidence of Officer Matthews’ alleged negligence did not violate the defendant’s “’right to a full and fair defense.’” Id. at 12.

The analysis in Pierce accords with that of other state courts confronting similar arguments.  See, e.g., State v. Anderson, 12 P.3d 883 (Kan. 2000) (concluding that reckless speeding by motorcyclist while being pursued by police created situation that resulted in the death of a person whose car was struck by a patrol car that ran stop sign during the chase and that defendant reasonably could have foreseen such harm); State v. Lovelace, 738 N.E.2d 418 (Ohio App. 1999) (affirming defendant’s conviction for involuntary manslaughter based on the death of a person who was killed when a police officer who was seeking to join in the chase of the defendant ran a stop sign and collided with the person’s vehicle); see also People v. Schmies, 51 Cal Rptr.2d 185 (Cal. App. 3 Dist. 1996) (rejecting defendant’s claim that in vehicular manslaughter trial the trial court improperly excluded evidence relating to the reasonableness of the police officers’ conduct while chasing the defendant on his motorcycle; during the pursuit a police officer failed to stop at intersection and crashed into another car, killing its driver).