Opinion

State v. Kaley

  • 117 N.C. App. 420
  • 451 S.E.2d 6
  • 1994 N.C. App. LEXIS 1260
Court
Court of Appeals of North Carolina
Filed
Dec 20, 1994
Status
Published
Author
Cozort
On the bench
Arnold, Cozort, Lewis
Cited by
2 cases
Authority
More cited than 6.3%

The opinion

Judge Cozort

dissenting.

The standard for acting in concert was set forth by our Supreme Court in State v. Joyner, 297 N.C. 349 , 255 S.E.2d 390 (1979):

“[I]f ‘two persons join in a purpose to commit a crime, each of them, if actually or constructively present, is not only guilty as a principal if the other commits that particular crime committed by the other in pursuance of the common purpose ... ox as a natural or probable consequence thereof.' ”

Id. at 357-58 , 255 S.E.2d at 396 (quoting State v. Westbrook, 279 N.C. 18, 41-42 , 181 S.E.2d 572, 586 (1971)), death penalty vacated, 408 U.S. 939 , 33 L.Ed.2d 761 (1972) (emphasis added). The question in the present case is whether involuntary manslaughter is a natural or probable consequence of an attempt to purchase crack cocaine.

Defendant should have been aware of the risks inherent in a “drive-up” purchase of illegal drugs. Death is a natural and sometimes probable consequence of an attempt to purchase drugs on the street. Defendant was engaged in attempting to purchase drugs, and it was proper for the trial court to instruct the jury that it could find him guilty of involuntary manslaughter through acting in concert. Our courts have held that a defendant is responsible when a death occurs during the commission of an armed robbery in which he acts in concert. See State v. Miller, 315 N.C. 773 , 340 S.E.2d 290 (1986); State v. Miller, 69 N.C. App. 392 , 317 S.E.2d 84 (1984); State v. Barnett, 307 N.C. 608 , 300 S.E.2d 340 (1983). The same standard should apply when a death occurs during the commission of an attempted drug purchase. Because the trial court properly applied this standard, I respectfully dissent from the majority’s opinion holding it was error to instruct on acting in concert.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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