Earlier this year, in State v. Gomola, ___ N.C. App. ___, 810 S.E.2d 797 (Feb. 6, 2018), the Court of Appeals addressed a self-defense issue that has sometimes puzzled the North Carolina courts. The question in Gomola was whether a person can rely on self-defense to a charge of involuntary manslaughter. The Court answered with a decisive yes . . . if the basis for the involuntary manslaughter charge is an unlawful act such as an assault or affray. Continue reading
Tag Archives: involuntary manslaughter
When I think of unlawful racing, scenes from old movies come to mind. I see guys (more specifically, James Dean and John Travolta) in white t-shirts and leather jackets behind the wheels of vintage Fords and Mercurys. Unfortunately, however, unlawful racing has not been relegated to the past. There were nearly 500 charges for unlawful speed competition in North Carolina last year, a misdemeanor offense that can result in the revocation of a person’s driver’s license as well as the seizure of the motor vehicle driven—not to mention serious injury or death.
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In 2014, 1,284 people were killed in traffic accidents in North Carolina. Most of those people were occupants in a passenger car, though motor vehicle crashes also claimed the lives of 172 pedestrians, 190 motorcyclists and 19 bicyclists. Seventy percent of the fatalities resulted from crashes that did not involve an alcohol-impaired driver. While it is fairly easy to determine the appropriate criminal charge when a person drives while impaired and proximately causes the death of another, it is less obvious what the appropriate charge is when a driver’s violation of another type of traffic statute proximately causes someone else’s death.
Most impaired drivers arrive at their destinations without harming themselves or anyone else. And few such drivers are actually stopped by police. That may explain why eight percent of people nationwide who were over 16 years old reported riding in a vehicle with a driver they thought may have consumed too much alcohol to drive safely. Young adult males were even more likely to engage in this behavior, with 24 percent of men aged 21 to 24 reporting having done so in the past year.
Though most impaired drivers don’t crash, newspapers are replete with tales of those who do, often with tragic consequences. Four hundred and two people died in alcohol-impaired driving fatalities in North Carolina in 2012. Nationwide that year, more than 10,000 people were killed in crashes involving an impaired driver—31 percent of the total traffic fatalities for the year. Impaired drivers themselves are killed most often in such crashes, comprising 65 percent of the deaths in 2012, with passengers in their vehicles a distant second, making up 16 percent of the deaths. Occupants of other vehicles accounted for 11 percent of fatalities.
When a person drives while impaired in North Carolina and proximately causes the death of another, the person may be charged with one or more felony offenses, including second-degree murder, aggravated felony death by vehicle, felony death by vehicle, and involuntary manslaughter as well as misdemeanor impaired driving. In 2013, 23 charges of aggravated felony death by vehicle and 130 charges of felony death by vehicle were filed in North Carolina.
Questions often arise at sentencing regarding whether a person may be separately punished for multiple felony convictions when each is based upon the defendant’s driving while impaired and causing the death of a single other person, as well as the underlying crime of misdemeanor DWI.
Below are the rules governing sentencing for such convictions.
Second degree murder. When a person is convicted of second degree murder based upon driving while impaired, the court must arrest judgment for a conviction of involuntary manslaughter, aggravated felony death by vehicle or felony death by vehicle based on the same incident and the same death. The person may not be sentenced for involuntary manslaughter because the offense is a lesser-included offense of second degree murder, and the legislature has not sanctioned cumulative punishment for such offenses. The person may not be sentenced for aggravated felony death by vehicle or felony death by vehicle, both Class D felonies, because the governing statute, G.S. 20-141.4(b), authorizes punishment under that statute “unless the conduct is covered under some other provision of law providing greater punishment.” State v. Davis, 364 N.C. 297, 304 (2010). Thus, punishment may be imposed for the greater offense of second-degree murder, a Class B2 felony in this circumstance, but not the lesser offenses of aggravated felony death by vehicle or felony death by vehicle. In addition to imposing a sentence for second-degree murder in such cases, the court may sentence the defendant for the underlying misdemeanor DWI, which is an offense with elements distinct from those required to support a conviction for second-degree murder.
Felony death by vehicle. If a person is convicted of aggravated felony death by vehicle or felony death by vehicle (both Class D felonies, though the former conviction must be punished in the aggravated range) and involuntary manslaughter based upon a single incident of driving while impaired that results in the death of another, the court must sentence the defendant pursuant to G.S. 20-141.4 and may not impose a sentence for involuntary manslaughter based on the same death. Instead, the court must arrest judgment for the conviction for involuntary manslaughter, a Class F felony, which merges into the conviction of felony death by vehicle. State v. Lopez, 363 N.C. 535, 536, 681 S.E.2d 271, 272 (2009).
The court may not impose a sentence for a conviction of misdemeanor impaired driving based on the same incident either, since it is a lesser included offense of both aggravated felony death by vehicle and felony death by vehicle, and is not an offense for which the legislature has not authorized cumulative punishment.
Similar sentencing questions arise in less serious cases when person is convicted of several misdemeanor offenses arising from a single incident of impaired driving, such as impaired driving under G.S. 20-138.1, impaired driving in a commercial motor vehicle under G.S. 20-138.2, or driving after consuming by a person under 21 under G.S. 20-138.3.
Impaired driving in a commercial motor vehicle. When a person is convicted of misdemeanor impaired driving and impaired driving in a commercial motor vehicle based on a single incident of driving, the person must be sentenced for both offenses but the aggregate punishment imposed by the court may not exceed the maximum punishment applicable to the offense involving impaired driving under G.S 20-138.1.
Driving after consuming. Driving by a person under 21 years old after consuming alcohol in violation of G.S. 20-138.3 is not a lesser included offense of impaired driving under G.S. 20-138.1. Thus, a person convicted of G.S. 20-138.3 (a Class 2 misdemeanor) and an offense involving impaired driving based on a single incident of driving may be sentenced for both offenses. The aggregate punishment imposed by the court, however, may not exceed the maximum applicable to the offense involving impaired driving.
General Deterrence. Those are the rules for dealing with compounded punishment for a compounded crime. It is difficult to know their general deterrent effect. And general—rather than specific—deterrence seems the appropriate focus as most drivers involved in fatal impaired driving crashes do not have a previous DWI conviction—at least not in the recent past as measured by the federal government. The National Highway Traffic Safety Administration reported in December 2013 that 93 percent of the drivers involved in fatal crashes had no previous DWI convictions, based on Fatality Analysis Reporting System data that reports DWI convictions occurring up to three years before the date of the crash.
In a recent case, State v. Fisher, the NC Court of Appeals upheld an involuntary manslaughter based on the defendant’s act of dumping an intoxicated and injured victim, alive but partially clothed, outside in a remote area and in freezing weather and then lying about the victim’s whereabouts. When I sent a summary of the case out on my listserv I got a few questions about it and about involuntary manslaughter in general.
In NC, involuntary manslaughter is a common law offense that’s punished as a Class F felony. G.S. 14-18. A key feature of the crime is that it involves an unintentional killing. State v. Fritsch, 351 N.C. 373, 380 (2000). The offense has three elements; a person guilty of this offense:
(2) another living human being
(3) (a) by an unlawful act that does not amount to a felony and is not ordinarily dangerous to life or
(b) by a culpably negligent act or omission.
Elements (1) and (2) are probably well understood by most blog readers. Element (3) merits a little explanation. Elements (3)(a) and (b) are alternative ways of establishing involuntary manslaughter. An example of an act covered by Element (3)(a) is a slap to the head (simple assault, a misdemeanor) of a victim who dies as a result of the contact.
Element (3)(b) covers culpably negligent acts or omissions. I previously discussed criminal negligence in a post here. Briefly, criminal negligence means a carelessness or recklessness showing a thoughtless disregard of consequences or a heedless indifference to the safety and rights of others. By contrast, the malice required for second-degree murder includes commission of an inherently dangerous act in such a reckless and wanton manner as to manifest a mind utterly without regard for human life and social duty and deliberately bent on mischief. Thus, courts have stated that the difference between involuntary manslaughter and second-degree murder “is one of the degree of risk and recklessness involved.” State v. Ray, 149 N.C. App. 137, 148 (2002). Note that this element includes both acts and omissions. See, e.g., State v. Phillips, 328 N.C. 1, 19–20 (1991); N.C. Pattern Jury Instructions—Crim. 206.50, nn. 1–2.
For involuntary manslaughter, as with all homicides, the defendant’s act must proximately cause the victim’s death. State v. Bruton, 344 N.C. 381, 393 (1996). A proximate cause is a cause without which the victim’s death would not have occurred; it need not have been the only cause, nor the last or nearest cause of death. Foreseeability is an essential part of proximate cause for involuntary manslaughter. See State v. Cole, 343 N.C. 399, 416 (1996); State v. Fisher, __ N.C. App. __ (Aug. 6, 2013). However, foreseeability doesn’t require that the defendant must have foreseen the exact injury incurred; rather, it means that “in the exercise of reasonable care, the defendant might have foreseen that some injury would result from his or her act or omission, or that consequences of a generally injurious nature might have been expected.” Cole, 343 N.C. at 416 (quotation and citation omitted); Fisher, __ N.C. App. __, slip op. at 16-17.
Now that the basics are out of the way, let’s look at Fisher. In that case, 16-year-old Michael Rogers died after attending a party at the defendant’s home. At the party, Michael was drunk and belligerent. At some point, the defendant “kicked or stomped” Michael’s face. One witness described Michael as “kind of coming in and out of consciousness.” At about 11:00 pm, Michael called his mother. His speech was slurred and he asked his mother and stepfather to come get him. When he called back a few minutes later, he was crying. After determining Michael’s whereabouts, his stepfather arranged to pick him up at a church a short distance from the party. When Michael failed to appear at the church, police, who had been previously contacted, began searching for Michael. Information led officers to the defendant’s house. Although Michael wasn’t there, they found blood at the home. The police asked the defendant’s father to call the defendant to see if he knew where Michael was. The defendant told his father he’d dropped Michael off at the end of a driveway. Officers, concerned for Michael’s safety given that temperatures were below freezing, searched the area but didn’t find him. As it turns out, the defendant didn’t drop Michael at the driveway. Instead, he drove him to a boat access area, fought with him again, and left him, clothed only in jeans, in an isolated parking area at the boat access area. Michael was later found dead nearby. The cause of death was hypothermia.
The defendant was charged with involuntary manslaughter and was convicted. On appeal he argued that there was insufficient evidence that he committed a culpably negligent act or omission that proximately caused Michael to freeze to death. The court, however, had “no difficulty” concluding that the evidence sufficiently established that the defendant’s actions were culpably negligent and that he “might have foreseen that some injury would result from his act or omission, or that consequences of a generally injurious nature might have been expected.” The court rejected the defendant’s argument that his conviction couldn’t stand because his attack on Michael didn’t cause Michael’s death. The court reasoned that the relevant culpably negligent act causing Michael’s death was “putting [him] out of the car in an injured, intoxicated, and under-clothed condition on a very cold night.” The court also rejected the defendant’s argument that it wasn’t reasonably foreseeable that Michael would wander off and die of hypothermia. Noting that foreseeability doesn’t require that the defendant foresee the injury in the exact form in which it occurred, the court concluded: “[I]t is hard to reach any conclusion other than that some injury to [Michael] was foreseeable, if not almost preordained, in light of that decision.”