{ "id": 9191738, "name": "STATE OF NORTH CAROLINA v. MICHAEL J. SHEPHERD", "name_abbreviation": "State v. Shepherd", "decision_date": "2003-03-18", "docket_number": "No. COA02-449", "first_page": "603", "last_page": "609", "citations": [ { "type": "official", "cite": "156 N.C. App. 603" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "548 S.E.2d 529", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "353 N.C. 453", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135602, 135593, 135850, 135717 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc/353/0453-04", "/nc/353/0453-01", "/nc/353/0453-02", "/nc/353/0453-03" ] }, { "cite": "542 S.E.2d 269", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "276" } ], "opinion_index": 0 }, { "cite": "142 N.C. App. 35", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9439427 ], "pin_cites": [ { "page": "45" } ], "opinion_index": 0, "case_paths": [ "/nc-app/142/0035-01" ] }, { "cite": "432 S.E.2d 125", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "129" } ], "opinion_index": 0 }, { "cite": "334 N.C. 356", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2530709 ], "year": 1993, "pin_cites": [ { "page": "364" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0356-01" ] }, { "cite": "154 L. Ed. 2d 71", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2002, "opinion_index": 0 }, { "cite": "537 U.S. 845", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9214464, 9214752, 9214726, 9214633, 9214666, 9214506, 9214603, 9214445, 9214575, 9214800, 9214687, 9214484, 9214774, 9214550, 9214431 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/us/537/0845-03", "/us/537/0845-13", "/us/537/0845-12", "/us/537/0845-09", "/us/537/0845-10", "/us/537/0845-05", "/us/537/0845-08", "/us/537/0845-02", "/us/537/0845-07", "/us/537/0845-15", "/us/537/0845-11", "/us/537/0845-04", "/us/537/0845-14", "/us/537/0845-06", "/us/537/0845-01" ] }, { "cite": "558 S.E.2d 109", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "152" } ], "opinion_index": 0 }, { "cite": "355 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 219986 ], "year": 2002, "pin_cites": [ { "page": "66" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0001-01" ] }, { "cite": "874 F. Supp. 107", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 7845526 ], "year": 1995, "pin_cites": [ { "page": "108" } ], "opinion_index": 0, "case_paths": [ "/f-supp/874/0107-01" ] }, { "cite": "519 S.E.2d 68", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "71" } ], "opinion_index": 0 }, { "cite": "135 N.C. App. 107", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11239266 ], "year": 1999, "pin_cites": [ { "page": "111" } ], "opinion_index": 0, "case_paths": [ "/nc-app/135/0107-01" ] }, { "cite": "392 S.E.2d 603", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "607" } ], "opinion_index": 0 }, { "cite": "326 N.C. 732", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5309774 ], "year": 1990, "pin_cites": [ { "page": "738" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0732-01" ] }, { "cite": "421 S.E.2d 569", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "572", "parenthetical": "quoting State v. Tew, 326 N.C. 732, 738, 392 S.E.2d 603, 607 (1990)" } ], "opinion_index": 0 }, { "cite": "332 N.C. 461", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2504044 ], "year": 1992, "pin_cites": [ { "page": "469", "parenthetical": "quoting State v. Tew, 326 N.C. 732, 738, 392 S.E.2d 603, 607 (1990)" } ], "opinion_index": 0, "case_paths": [ "/nc/332/0461-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 162-22", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "year": 2001, "pin_cites": [ { "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "464 S.E.2d 471", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "473" } ], "opinion_index": 0 }, { "cite": "121 N.C. App. 41", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11915198 ], "year": 1995, "pin_cites": [ { "page": "44" } ], "opinion_index": 0, "case_paths": [ "/nc-app/121/0041-01" ] }, { "cite": "393 S.E.2d 811", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "814" } ], "opinion_index": 0 }, { "cite": "327 N.C. 210", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2498848 ], "year": 1990, "pin_cites": [ { "page": "215" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0210-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 162-55", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 12, "year": 2001, "pin_cites": [ { "parenthetical": "emphasis added" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 635, "char_count": 15088, "ocr_confidence": 0.74, "pagerank": { "raw": 7.84104658525264e-08, "percentile": 0.4584659182832667 }, "sha256": "36896bf0af0adcd27f021cb7a1b8972dd150689d8a911c298d84c6b4f5147d0e", "simhash": "1:99f9d136150b74c2", "word_count": 2536 }, "last_updated": "2023-07-14T21:05:49.893248+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McGEE and CALABRIA concur." ], "parties": [ "STATE OF NORTH CAROLINA v. MICHAEL J. SHEPHERD" ], "opinions": [ { "text": "HUNTER, Judge.\nMichael J. Shepherd (\u201cdefendant\u201d) appeals from a conviction of injury to prisoner by jailer. Defendant assigns error to the trial court\u2019s denial of his motion to dismiss the charge of injury to prisoner by jailer because defendant asserts that he was not \u201cthe keeper of a jail\u201d within the meaning of N.C. Gen. Stat. \u00a7 162-55 (2001) since he was a courtroom bailiff. Defendant also contends the trial court erred in its instructions to the jury regarding the definition of \u201cthe keeper of a jail.\u201d We hold that defendant, acting as a bailiff, would be considered \u201cthe keeper of a jail\u201d within the meaning of N.C. Gen. Stat. \u00a7 162-55 and thus, the trial court properly denied defendant\u2019s motion to dismiss. We additionally conclude the jury was properly instructed concerning the definition of \u201cthe keeper of a jail.\u201d Therefore, we find no error.\nThe evidence at trial tended to show that defendant was formerly employed in the custody division of the New Hanover County Sheriff\u2019s Department. On 22 September 2000, defendant was working as a bailiff in the courthouse. Captain David Stevenson (\u201cCaptain Stevenson\u201d), the chief jailer for the New Hanover County Jail, testified that a bailiff\u2019s duties include the care and custody of inmates who are taken to the courthouse from the jail. Therefore, according to Captain Stevenson, bailiffs operate as jailers in the courthouse. The State offered into evidence the Cape Fear Community College\u2019s certificate of completion of the detention officer certification course by defendant. Captain Stevenson testified that it is required that a jailer or detention officer be certified by the State as a detention officer. According to Captain Stevenson, a detention officer is synonymous with a jailer. Captain Stevenson explained that a bailiff is a jailer because there are holding facilities in the courthouse and a bailiff has the same custody, care and keeping obligation as the jailers do who work in the actual jail. Bailiffs have occasion to go to the detention centers in the courthouse to take inmates into the courtroom for trial or to testify in a case. In addition, bailiffs\u2019 duties require them to go to the jail to pick up inmates for transport to court. Captain Stevenson stated that defendant was charged \u201cwith the care, custody and safekeeping of anyone assigned to him, any inmate that might be in our custody.\u201d\nNathaniel Edward Arter (\u201cArter\u201d), an inmate, testified at trial that on 22 September 2000, when he returned from court, he observed defendant talking to two other inmates, Cecil Moore (\u201cMoore\u201d) and William Bruce (\u201cBruce\u201d), in the vestibule outside of Arter\u2019s jail cell. Approximately a minute after defendant left the cell block, a blanket was thrown over Arter\u2019s head and Arter was beaten by Moore and Bruce.\nBruce testified that on 22 September 2000, defendant promised Bruce that if Bruce beat Arter up, he would get Bruce whatever he wanted, which Bruce assumed meant cigarettes or something like that. Bruce admitted beating Arter and pled guilty to an assault charge. In addition, Jeffrey Scott Penny (\u201cDeputy Penny\u201d), a deputy sheriff with the New Hanover County Sheriff\u2019s Department, testified that defendant responded, \u201c \u2018[y]ou damn right I did it[,]\u2019 \u201d when questioned about the Arter incident.\nA jury found defendant guilty of injury to prisoner by jailer. Defendant was given a forty-five day suspended sentence and twelve months supervised probation. Defendant appeals.\nI.\nDefendant initially contends the trial court erred in denying his motion to dismiss the charge of injury to prisoner by jailer because defendant asserts that he was not \u201cthe keeper of a jail\u201d since he was a courtroom bailiff and thus, the provisions of N.C. Gen. Stat. \u00a7 162-55 did not apply to his alleged misconduct. We disagree.\nWhen reviewing a motion to dismiss, the trial court must determine \u201cwhether there is substantial evidence (1) of each essential element of the offense charged and (2) that defendant is the perpetrator of the offense.\u201d State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990). The evidence must be viewed in the light most favorable to the State. State v. Smith, 121 N.C. App. 41, 44, 464 S.E.2d 471, 473 (1995).\nDefendant was charged with and convicted of the offense of injury to prisoner by jailer in violation of N.C. Gen. Stat. \u00a7 162-55, which provides: \u201cIf the keeper of a jail shall do, or cause to be done, any wrong or injury to the prisoners committed to his custody, contrary to law, he shall not only pay treble damages to the person injured, but shall be guilty of a Class 1 misdemeanor.\u201d N.C. Gen. Stat. \u00a7 162-55 (emphasis added). Defendant cites N.C. Gen. Stat. \u00a7 162-22 (2001) in support of his argument that he was not \u201cthe keeper of a jail\u201d within the meaning of N.C. Gen. Stat. \u00a7 162-55. N.C. Gen. Stat. \u00a7 162-22 states, \u201c[t]he sheriff shall have the care and custody of the jail in his county; and shall be, or appoint, the keeper thereof \u201d N.C. Gen. Stat. \u00a7 162-22 (emphasis added). Defendant argues that this provision supports his interpretation that N.C. Gen. Stat. \u00a7 162-55 applies only to the officer at the head of the jail\u2019s command structure \u2014 the sheriff, or whoever the sheriff appoints to be the keeper of the jail. In addition, defendant asserts that the use of the word \u201cthe\u201d prior to \u201ckeeper of a jail\u201d demonstrates that N.C. Gen. Stat. \u00a7 162-55 was intended to apply to a single person, i.e., the individual who was in charge of the detention facility at issue.\nWe first note that there are very few cases citing N.C. Gen. Stat. \u00a7 162-55, and no cases in which our Courts have determined whether a \u201cbailiff\u201d would constitute \u201cthe keeper of a jail\u201d within the meaning of N.C. Gen. Stat. \u00a7 162-55. Therefore, this case presents an issue of first impression.\nIn construing statutes, Courts must \u201cseek to give effect to the legislative intent, which may be discerned by consideration of the purpose of the statute, \u2018the evils it was designed to remedy, the effect of proposed interpretations of the statute, and the traditionally accepted rules of statutory construction.\u2019 \u201d State v. Gaines, 332 N.C. 461, 469, 421 S.E.2d 569, 572 (1992) (quoting State v. Tew, 326 N.C. 732, 738, 392 S.E.2d 603, 607 (1990)). Moreover, it is fundamental in statutory construction that \u201ccriminal laws must be strictly construed and any ambiguities resolved in favor of the defendant.\u201d State v. Gentry, 135 N.C. App. 107, 111, 519 S.E.2d 68, 71 (1999).\nIt appears that the General Assembly\u2019s intent in passing N.C. Gen. Stat. \u00a7 162-55 was to provide for the safekeeping and humane treatment of prisoners, since the initial bill passed in 1795, which is remarkably similar to the current statute, was entitled \u201c \u2018Bill to Provide for the Safe-Keeping and Humane Treatment of Persons in Confinement.\u2019 \u201d Letchworth v. Gay, 874 F. Supp. 107, 108 (E.D.N.C. 1995). Since the General Assembly\u2019s intent in enacting the statute was to protect prisoners from their custodians, \u201cthe keeper of a jail\u201d must be construed to include those persons charged with the care, custody, and maintenance of prisoners. In the instant case, we note there was testimony that bailiffs have the same custody, care and keeping obligation as the jailers do who work in the actual jail. Evidence was also admitted showing that defendant was certified by the State as a detention officer, and according to Captain Stevenson, a detention officer is synonymous with a jailer. Captain Stevenson further testified that defendant was charged \u201cwith the care, custody and safekeeping of anyone assigned to him, any inmate that might be in our custody.\u201d Therefore, defendant, acting as a bailiff, would be considered \u201cthe keeper of a jail\u201d within the meaning of N.C. Gen. Stat. \u00a7 162-55. Accordingly, the trial court was proper in denying defendant\u2019s motion to dismiss the charge of injury to prisoner by jailer.\nII.\nDefendant next argues the trial court erred in its instructions to the jury regarding the definition of \u201cthe keeper of a jail.\u201d\nAt the outset, the choice of instructions given to a jury \u201cis a matter within the trial court\u2019s discretion and will not be overturned absent a showing of abuse of discretion.\u201d State v. Nicholson, 355 N.C. 1, 66, 558 S.E.2d 109, 152, cert. denied, 537 U.S. 845, 154 L. Ed. 2d 71 (2002). In addition, \u201c[i]f a request is made for a jury instruction which is correct in itself and supported by evidence, the trial court must give the instruction at least in substance.\u201d State v. Harvell, 334 N.C. 356, 364, 432 S.E.2d 125, 129 (1993). Additional instructions may be given \u201cto respond to jury inquiries, to correct an erroneous instruction, to clarify an ambiguous instruction, or to instruct the jury on law which should have been included in the original instructions.\u201d State v. Clegg, 142 N.C. App. 35, 45, 542 S.E.2d 269, 276, (citing N.C. Gen. Stat. \u00a7 15A-1234(a) (1999)), appeal dismissed and disc. review denied, 353 N.C. 453, 548 S.E.2d 529 (2001).\nDefendant submitted to the court the following request for jury instruction:\nThe Defendant requests] that as a supplement to the Pattern Jury Instructions for the crime of injury to prisoner by jailer, the court instruct the jury that in order to find that the defendant is \u201cthe keeper of the jail\u201d within the context of the statutory language in N.C.G.S. \u00a7 162-55, in accordance with N.C.G.S. \u00a7 162-22 which states that \u201cthe sheriff shall have the care and custody of the jail in his county; and shall be, or appoint, the keeper thereof.\u201d Therefore, we are requesting instruction that: In order to find that the Defendant was the keeper of the jail, you must find that he was either the sheriff or was the person appointed by the sheriff to be the keeper of the jail.\nThe trial court denied defendant\u2019s request and instructed the jury as follows, in pertinent part:\nThe Defendant has been charged with injury to a prisoner by a jailer. Now I charge that for you to find the Defendant guilty of this offense, the State must prove four things beyond a reasonable doubt: First, that the Defendant was the keeper of a jail; second, that the victim was a prisoner committed to his custody; third, that the Defendant caused injury to be done to the victim; and fourth, that he did this contrary to law. Directing and causing other prisoners to beat the victim would be contrary to law.\nDuring deliberations, the jury asked the following questions: (1) \u201c \u2018In role of a bailiff, where does his role begin and end? Who is under bailiff\u2019s custody?\u2019 \u201d (2) \u201c \u2018Was prisoner committed to Shepherd\u2019s custody?\u2019 \u201d and (3) \u201c \u2018Definition between jailer and bailiff.\u2019 \u201d The court answered question (1) by stating:\n[A] prisoner is under a bailiff\u2019s custody when the bailiff has the duty, either alone or together with other deputies, to maintain the imprisonment of the prisoner.\nSo again, for the purpose of this trial, a prisoner or prisoners, are in the custody of a bailiff when the bailiff has as one of his duties, either alone or together with other deputies, the responsibility to maintain the imprisonment of the prisoner. So if it\u2019s part of the bailiff\u2019s responsibility to maintain the imprisonment of a prisoner or prisoners, they\u2019re under the bailiff\u2019s custody.\nThe court refused to answer question (2) and advised the jury that they must answer that question from the evidence. Finally, as to question (3), the court advised the jury that \u201ca bailiff is a jailer when a prisoner is in his custody, or when prisoners are in his custody. So again, a bailiff is a jailer when, as a part of his duties, he is maintaining the imprisonment of a prisoner or prisoners.\u201d After answering the jury\u2019s inquiries, the trial court allowed the jury to resume deliberations but soon called them back into the courtroom to hear the following additional instruction:\nI didn\u2019t want to leave you with the impression that a prisoner can be in the custody of a jailer where the jailer had as his duties the maintaining of the imprisonment of some other prisoners and not that particular prisoner. But in order to \u2014 in order for a prisoner to be in the custody of a jailer, then it has to be the jailer\u2019s responsibility to \u2014 or part of his responsibility to maintain the imprisonment of that particular prisoner.\nWe conclude the trial court did not err in its instructions to the jury regarding the definition of \u201cthe keeper of a jail.\u201d The trial court properly denied defendant\u2019s request for a specific instruction since the requested instruction erroneously indicated that in order to be found guilty of injury to prisoner by jailer the defendant must be either the Sheriff or the person appointed by the sheriff to be the keeper of the jail. As determined in section I, \u201cthe keeper of a jail\u201d includes those persons charged with the care, custody, and . maintenance of prisoners. We additionally conclude the trial court\u2019s initial instructions correctly informed the jury of the applicable law. Moreover, the court\u2019s responses to the jury\u2019s inquiries provided clarity. Therefore, we find no error in the trial court\u2019s instructions concerning the definition of \u201cthe keeper of a jail.\u201d\nNo error.\nJudges McGEE and CALABRIA concur.", "type": "majority", "author": "HUNTER, Judge." } ], "attorneys": [ "Attorney General Roy A. Cooper, III, by Assistant Attorney General Mary S. Mercer, for the State.", "Randolph and Fischer, by J. Clark Fischer, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. MICHAEL J. SHEPHERD\nNo. COA02-449\n(Filed 18 March 2003)\n1. Prisons and Prisoners\u2014 injury to prisoner by jailer \u2014 sufficiency of evidence \u2014 keeper of the jail \u2014 bailiff\nThe trial court did not err by denying defendant\u2019s motion to dismiss the charge of injury to prisoner by jailer even though defendant contends he was not the keeper of the jail within the meaning of N.C.G.S. \u00a7 162-55, because defendant, acting as a courtroom bailiff, would be considered the keeper of a jail when: (1) bailiffs have the same custody, care, and keeping obligation as the jailers do who work in the actual jail; and (2) defendant was certified by the State as a detention officer which is synonymous with a jailer.\n2. Prisons and Prisoners\u2014 injury to prisoner by jailer \u2014 jury instruction \u2014 keeper of the jail\nThe trial court did not abuse its discretion in an injury to prisoner by jailer case by instructing the jury concerning the definition of the keeper of a jail, because: (1) the trial court properly denied defendant\u2019s request for a specific instruction since the requested instruction erroneously indicated that, in order to be found guilty of injury to prisoner by jailer, defendant must be either the sheriff or the person appointed by the sheriff to be the keeper of the jail; (2) the keeper of a jail includes those persons charged with the care, custody, and maintenance of prisoners, and the trial court\u2019s initial instructions correctly informed the jury of the applicable law; and (3) the trial court\u2019s responses to jury inquiries provided clarity.\nAppeal by defendant from judgment entered 26 September 2001 by Judge Ernest B. Fullwood in New Hanover County Superior Court. Heard in the Court of Appeals 23 January 2003.\nAttorney General Roy A. Cooper, III, by Assistant Attorney General Mary S. Mercer, for the State.\nRandolph and Fischer, by J. Clark Fischer, for defendant-appellant." }, "file_name": "0603-01", "first_page_order": 633, "last_page_order": 639 }