State v. Kaley

468 S.E.2d 44 (1996)

343 N.C. 107

STATE of North Carolina v. Mitchell Gibbard KALEY.

No. 38A95.

Supreme Court of North Carolina.

April 4, 1996.

*45 Michael F. Easley, Attorney General by Ranee S. Sandy and H. Alan Pell, Assistant Attorneys General, for the State-appellant.

Glenn A. Barfield, Goldsboro, for defendant-appellee.

WEBB, Justice.

The defendant contends and the Court of Appeals held that it was error for the court to charge the jury on acting in concert because there was no evidence the defendant and Sharp were acting together pursuant to a common plan which caused the death of Ms. Parks. We note at the outset that it is not necessary for a person to intend to kill in order to be guilty of involuntary manslaughter. Involuntary manslaughter can be based on culpable negligence. State v. Everhart, 291 N.C. 700, 702, 231 S.E.2d 604, 606 (1977). If two persons act together in a culpably negligent way and the culpable negligence proximately causes the death of a person, the two persons would be guilty of involuntary manslaughter. State v. Robinson, 83 N.C.App. 146, 349 S.E.2d 317 (1986).

The question posed by this appeal is whether there is sufficient evidence from *46 which the jury could conclude the defendant acted together with the driver of the automobile in a culpably negligent way which proximately caused the death of Ms. Parks. We believe there is such evidence. We start with the premise that a person intends the consequences of his acts.

The culpable negligence in this case was allowing the automobile to move while Ms. Parks was being held. There was evidence from which the jury could find the defendant held Ms. Parks while the driver of the automobile drove away from the curb. Each of the two men did something which caused the death.

The evidence from which the jury could conclude that the men were engaged in a common plan is found from the circumstances in which the incident occurred. The two men had gone to the neighborhood to buy crack cocaine. When Ms. Parks approached the vehicle which they occupied, it is reasonable to conclude it was to sell them cocaine. When she reached into the automobile in an attempt to get the money, it is reasonable to conclude she had not been paid for the crack cocaine. When the two men drove away without paying for the cocaine, it can be concluded that they planned to drive away without paying for the drugs. To drive away when a person is standing next to the automobile in such close proximity that the automobile may hit or catch and drag her can be found to be culpable negligence. This evidence supported the court's charge on involuntary manslaughter.

The defendant argues that Rule 16(b) of the North Carolina Rules of Appellate Procedure limits the State's right of appeal to the matters which are the basis of the dissent in the Court of Appeals. The dissent says that "[d]eath is a natural and sometimes probable consequence of an attempt to purchase drugs on the street." State v. Kaley, 117 N.C.App. 420, 423, 451 S.E.2d 6, 9 (1994). The dissent concludes that the defendant acted with another person to purchase crack cocaine and that this was evidence of acting in concert which caused the resulting death. The defendant contends the State is limited on appeal to arguing that the attempted purchase of the cocaine was the concerted action which would support the charge.

We do not believe Rule 16(b) should be interpreted so narrowly. The dissent was based on the premise that there was evidence to support a charge of acting in concert. The State can argue in this Court any evidence that supports this premise. It is not limited to arguing the reasons in the dissent as to why there was evidence to support the charge.

We reverse the Court of Appeals on the issue upon which it decided the case. The defendant brought forward two assignments of error which the Court of Appeals did not reach in light of its disposition of the matter. We remand the case to the Court of Appeals for the consideration of these two assignments of error.

REVERSED AND REMANDED.