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North Carolina v. Flaherty

Filed: December 1, 1981.

STATE OF NORTH CAROLINA
v.
MICHAEL J. FLAHERTY



On a writ of certiorari to review judgment of Cornelius, Judge. Judgment entered 28 March 1980 in Superior Court, Mecklenburg County. Heard in th Court of Appeals 20 October 1981.

Clark, Judge. Judges Hedrick and Martin (Harry C.) concur.

Clark

Defendant's assignments of error relate to the jury instructions. The trial judge submitted involuntary manslaughter and death by motor vehicle as possible guilty verdicts. With respect to involuntary manslaughter, he instructed that the State had to prove beyond a reasonable doubt (1) that the defendant violated the law with respect to the operation of motor vehicles; (2) that the violation constituted culpable negligence, i.e., that it was willful, wanton or intentional; and (3) that the violation proximately caused death. In the course of explaining the first two elements, the judge instructed on the applicable provisions of G.S. § 20-141, the statute which defines speed restrictions, and on § 20-34 of the Charlotte Code, the ordinance which provides for traffic control by means of traffic lights. The judge then instructed

that under certain circumstances police officers may be exempt from these laws, and in this regard he instructed on the provisions of G.S. § 20-145 and § 20-3 of the Charlotte Code. These laws, in pertinent part, provide as follows:

G.S. § 20-145. When speed limit not applicable. -- The speed limitations set forth in this Article shall not apply to vehicles when operated with due regard for safety under the direction of the police in the chase or apprehension of violators of the law or of persons charged with or suspected of any such violation . . . . This exemption shall not, however, protect the driver of any such vehicle from the consequence of a reckless disregard of the safety of others.

Sec. 20-2. Emergency vehicles; exemptions.

(a) The provisions of this chapter regulating the operation, parking, and standing of vehicles shall not apply to vehicles of the police department nor to fire department or fire patrol vehicles when an exemption from said provisions is reasonably necessary in the actual discharge of official duties . . . .

(d) The provisions of this section shall not operate to relieve the driver of any such vehicle from the duty to drive with due regard for the safety of all persons and property using the streets, nor shall such provisions protect the driver of any such vehicle from the consequences of his reckless disregard of the safety of others.

Applying G.S. § 20-145, the trial judge instructed as follows:

Should the defendant, Michael J. Flaherty, satisfy you that he was a police officer who operated his vehicle with due regard for the safety of others while he was engaged in a chase or apprehension of violators of the law or persons suspected of such violations, and did not recklessly disregard the safety of others, he would then be exempt from the normal requirements of the speed laws. Should he fail to so satisfy you, however, he would not be exempt from the normal requirements of the speed laws, and you would not consider his operation of the vehicle under the standard

applicable to exempt police officers. If you should find to your satisfaction that Officer Flaherty has proved that he is exempt from the normal requirements of the speed laws, you will then consider whether or not the conduct of Officer Flaherty was that which a reasonable and prudent person would exercise in the discharge of official duties of a like nature under like circumstances.

Thus, as to the second element, culpable negligence, on the question of the speed laws, you must first decide whether or not there is a wilful, wanton, or intentional violation of the safety statute, the burden of proof on that question being upon the State to prove it to you beyond a reasonable doubt. You will then decide whether or not the defendant, Michael Flaherty, has satisfied you that he was operating a police vehicle with due regard for the safety of others while engaging in a chase or apprehension of a violator of the law, or a person charged with or suspected of a violation, and that he did not recklessly disregard the safety of others. Should the defendant Flaherty so satisfy you, he would then be exempt from the normal requirements of the speed laws, and you would then consider whether or not the conduct of the defendant, Michael Flaherty, was that which a reasonable and prudent person would exercise in the discharge of official duties of a like nature under like circumstances.

Applying § 20-3 of the Charlotte Code, the trial judge instructed:

Thus, should the defendant, Michael Flaherty, satisfy you that the manner in which he operated his vehicle was reasonably necessary and in the actual discharge of his official duties; and that the manner in which he operated his vehicle was with due regard for the safety of all persons and properties using the streets, and that he did not recklessly disregard the safety of others, you would then find he was exempt from the provisions of Section 20-34 of the City Code requiring that he stop at a red light. Should the defendant fail to satisfy you that he is exempted from the provisions of this ordinance, you would not consider the question of the ...


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