State v. McGill

326 S.E.2d 345, 73 N.C. App. 206, 1985 N.C. App. LEXIS 3246
CourtCourt of Appeals of North Carolina
DecidedMarch 5, 1985
Docket8416SC441
StatusPublished
Cited by3 cases

This text of 326 S.E.2d 345 (State v. McGill) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. McGill, 326 S.E.2d 345, 73 N.C. App. 206, 1985 N.C. App. LEXIS 3246 (N.C. Ct. App. 1985).

Opinions

WELLS, Judge.

Defendant first assigns error to the denial of various motions challenging the sufficiency of the evidence. He directs his attack to the issue of causation. We note first that the state produced ample evidence to support the jury’s verdict on the DUI charge. State v. Scott, 71 N.C. App. 570, 322 S.E. 2d 613 (1984). Defendant’s challenge to the driving while license permanently revoked charge is frivolous, and he does not contest the transporting conviction. The real challenge is to the manslaughter convictions.

Once the state proved the DUI offense, it then bore the burden of establishing that the violation proximately caused the deaths:

[T]he act of the accused need not be the immediate cause of death. He is legally accountable if the direct cause is the natural result of the criminal act. [Citations omitted.] There [209]*209may be more than one proximate cause and criminal responsibility arises when the act complained of caused or directly contributed to the death. [Citations omitted.]

State v. Mitchell, 62 N.C. App. 21, 302 S.E. 2d 265 (1983) (quoting State v. Cummings, 301 N.C. 374, 271 S.E. 2d 277 (1980)). In Mitchell, we rejected the defendant’s contention that intervening negligence on the part of the treating physician absolved him of criminal liability: when the injury inflicted by accused is a contributing cause of death, the accused must bear criminal responsibility unless it can be shown that intervening acts of others were the sole cause of death. Id. Accordingly, the state need not, as defendant appears to contend, exclude every other possible cause of death. Language in State v. Stewardson, 32 N.C. App. 344, 232 S.E. 2d 308, disc. rev. denied, 292 N.C. 643, 235 S.E. 2d 64 (1977), to the effect that the violation “must” have caused the accident and death, when read in context, simply is a paraphrase of the general rule: the state must produce sufficient evidence to allow the jury to find that defendant’s acts were a proximate cause of death.

More problematic is defendant’s contention that the state failed to show sufficient causal connection between his intoxication and the accident. While it is undoubtedly negligent to drive while under the influence, that negligence must be causally connected to the accident by evidence of violation of some rule of the road or other faulty driving, to establish liability. Atkins v. Moye, 277 N.C. 179, 176 S.E. 2d 789 (1970); Rhyne v. O’Brien, 54 N.C. App. 621, 284 S.E. 2d 122 (1981); State v. Hewitt, 263 N.C. 759, 140 S.E. 2d 241 (1965); State v. Lowery, 223 N.C. 598, 27 S.E. 2d 638 (1943).1 An intoxicated driver driving at normal speed on his side of the road obviously would not ordinarily be deemed negligent for involvement in a collision with an approaching car that suddenly swerved over the center line into his or her path. Atkins v. Moye, supra. Evidence of driving while intoxicated, [210]*210standing alone, will not support an involuntary manslaughter conviction. State v. Lowery, supra.2

The fact that the only other witnesses to the accident perished at the scene did not prevent the state from proving its case. Circumstantial and expert evidence may suffice. The state introduced evidence which, taken most favorably to the state, tended to show that the road was straight and clear, that the victims’ car was traveling along it with lights on, and that defendant’s car struck it from the left rear with enough force to flip the victims’ car and throw it into the ditch. This evidence clearly sufficed, taken in the light most favorable to the state, to show numerous violations of the applicable rules of the road. N.C. Gen. Stat. § 20440(a) (Cum. Supp. 1981) (reckless driving); N.C. Gen. Stat. § 20441(a) (1978) (imprudent speed) or G.S. § 20-141(m) (failure to reduce speed to avoid colliding with another vehicle); N.C. Gen. Stat. § 20452(a) (1978) (following too closely). While the state did not show that alcohol generally impairs reaction time and driving ability, such facts clearly lie within common knowledge of jurors. See State v. Cole, 270 N.C. 382, 154 S.E. 2d 506 (1967). The evidence thus was sufficient to support convictions of manslaughter, on the theory that defendant, because of his intoxication, could not avoid the collision and thus caused the fatal collision. Defendant’s various motions going to the sufficiency of the evidence were therefore correctly denied.

While the evidence was sufficient, however, it did not compel the jury’s verdict. Defendant’s assignment of error to the jury instructions therefore is well taken. Defendant requested an instruction substantially in accordance with the law as we have described it, i.e., that the state must show a causal connection between the intoxication and the accident through a violation of one of the rules of the road. The court refused, stating that viola[211]*211tion of a safety statute, including the DUI statute, would support conviction. As noted above, this was error.

In State v. Lowery, supra, a drunk-driving manslaughter case, our supreme court held that in order to convict for manslaughter in such a case, it was not sufficient merely to show that the defendant was intoxicated at the time of the collision, but that the evidence must also show reckless driving or other misconduct on the part of the defendant resulting from the intoxication which shows a proximate causal relation between the breach of the drunk-driving statute and the death of the victim. The rule set out in Lowery was re-stated in Atkins v. Moye, supra, as follows:

Unquestionably a motorist is guilty of negligence if he operates a motor vehicle on the highway while under the influence of intoxicating liquor. Such conduct, however, will not constitute . . . actionable negligence . . . unless — like any other negligence — it is causally related to the accident. . . . Mere proof that a motorist involved in a collision was under the influence of an intoxicant at the time does not establish a causal relation between his condition and the collision. His condition must have caused him to violate a rule of the road and to operate his vehicle in a manner which was a proximate cause of the collision. [Citations omitted.]

This court most recently followed and applied this rule in Rhyne v. O’Brien, supra. We reject the state’s argument that defendant’s assignment is not properly before us because he failed to object to the instructions as given. See Rule 10(b)(2) of the Rules of Appellate Procedure. Defendant timely submitted written instructions and the court denied his request after argument on record. This sufficed to bring the question forward. See N.C. Gen. Stat. § 1A-1, Rule 46(b) of the Rules of Civil Procedure.

We also note that by the reasoning applied above, defendant’s convictions of driving while license revoked and transporting liquor with the seal broken cannot support the manslaughter convictions. See also Hoke v. Greyhound Corp., 227 N.C. 412, 42 S.E. 2d 593 (1947) (underage driver; breach of care in operation still must be shown).

In his dissent, Judge Eagles takes the position that our decision in this case should be controlled by this court’s opinion in [212]*212State v. Johnson, 72 N.C. App. 512, 325 S.E. 2d 253 (1985).

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Related

Caibaiosai v. Barrington
643 F. Supp. 1007 (W.D. Wisconsin, 1986)
State v. McGill
336 S.E.2d 90 (Supreme Court of North Carolina, 1985)
State v. McGill
326 S.E.2d 345 (Court of Appeals of North Carolina, 1985)

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Bluebook (online)
326 S.E.2d 345, 73 N.C. App. 206, 1985 N.C. App. LEXIS 3246, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mcgill-ncctapp-1985.