Appeal 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.
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.
HUNTER, Judge.
Michael J. Shepherd (“defendant”) appeals from a conviction of
injury to prisoner by jailer. Defendant assigns error to the trial
court's denial of his motion to dismiss the charge of injury to
prisoner by jailer because defendant asserts that he was not “the
keeper of a jail” within the meaning of N.C. Gen. Stat. § 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 “the keeper of a jail.” We hold that defendant,
acting as a bailiff, would be considered “the keeper of a jail”
within the meaning of N.C. Gen. Stat. § 162-55 and thus, the trial
court properly denied defendant's motion to dismiss. We
additionally conclude the jury was properly instructed concerningthe definition of “the keeper of a jail.” Therefore, we find no
error.
The evidence at trial tended to show that defendant was
formerly employed in the custody division of the New Hanover County
Sheriff's Department. On 22 September 2000, defendant was working
as a bailiff in the courthouse. Captain David Stevenson (“Captain
Stevenson”), the chief jailer for the New Hanover County Jail,
testified that a bailiff's 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's 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' duties require them to go to the jail to pick up inmates
for transport to court. Captain Stevenson stated that defendant
was charged “with the care, custody and safekeeping of anyone
assigned to him, any inmate that might be in our custody.” Nathaniel Edward Arter (“Arter”), 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
(“Moore”) and William Bruce (“Bruce”), in the vestibule outside of
Arter's jail cell. Approximately a minute after defendant left the
cell block, a blanket was thrown over Arter's head and Arter was
beaten by Moore and Bruce.
Bruce 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 (“Deputy Penny”), a
deputy sheriff with the New Hanover County Sheriff's Department,
testified that defendant responded, “'[y]ou damn right I did
it[,]'” when questioned about the Arter incident.
A 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.
I.
Defendant 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 “the keeper of a jail”
since he was a courtroom bailiff and thus, the provisions of N.C.
Gen. Stat. § 162-55 did not apply to his alleged misconduct. We
disagree. When reviewing a motion to dismiss, the trial court must
determine “whether there is substantial evidence (1) of each
essential element of the offense charged and (2) that defendant is
the perpetrator of the offense.”
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).
Defendant was charged with and convicted of the offense of
injury to prisoner by jailer in violation of N.C. Gen. Stat. § 162-
55, which provides: “If
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.”
N.C. Gen. Stat. § 162-55 (emphasis added). Defendant cites N.C.
Gen. Stat. § 162-22 (2001) in support of his argument that he was
not “the keeper of a jail” within the meaning of N.C. Gen. Stat. §
162-55. N.C. Gen. Stat. § 162-22 states, “[t]he sheriff shall have
the care and custody of the jail in his county; and
shall be, or
appoint, the keeper thereof.” N.C. Gen. Stat. § 162-22 (emphasis
added). Defendant argues that this provision supports his
interpretation that N.C. Gen. Stat. § 162-55 applies only to the
officer at the head of the jail's command structure -- the sheriff,
or whoever the sheriff appoints to be the keeper of the jail. In
addition, defendant asserts that the use of the word “the” prior to
“keeper of a jail” demonstrates that N.C. Gen. Stat. § 162-55 wasintended to apply to a single person, i.e., the individual who was
in charge of the detention facility at issue.
We first note that there are very few cases citing N.C. Gen.
Stat. § 162-55, and no cases in which our Courts have determined
whether a “bailiff” would constitute “the keeper of a jail” within
the meaning of N.C. Gen. Stat. § 162-55. Therefore, this case
presents an issue of first impression.
In construing statutes, Courts must “seek to give effect to
the legislative intent, which may be discerned by consideration of
the
purpose of the statute, 'the evils it was designed to remedy,
the effect of proposed interpretations of the statute, and the
traditionally accepted rules of statutory construction.'”
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
“criminal laws must be strictly construed and any ambiguities
resolved in favor of the defendant.”
State v. Gentry, 135 N.C.
App. 107, 111, 519 S.E.2d 68, 71 (1999).
It appears that the General Assembly's intent in passing N.C.
Gen. Stat. § 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
“'Bill to Provide for the Safe-Keeping and Humane Treatment of
Persons in Confinement.'”
Letchworth v. Gay, 874 F. Supp. 107, 108
(E.D.N.C. 1995). Since the General Assembly's intent in enacting
the statute was to protect prisoners from their custodians, “thekeeper of a jail” 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 “with the care, custody and safekeeping of anyone
assigned to him, any inmate that might be in our custody.”
Therefore, defendant, acting as a bailiff, would be considered “the
keeper of a jail” within the meaning of N.C. Gen. Stat. § 162-55.
Accordingly, the trial court was proper in denying defendant's
motion to dismiss the charge of injury to prisoner by jailer.
II.
Defendant next argues the trial court erred in its
instructions to the jury regarding the definition of “the keeper of
a jail.”
At the outset, the choice of instructions given to a jury “is
a matter within the trial court's discretion and will not be
overturned absent a showing of abuse of discretion.”
State v.
Nicholson, 355 N.C. 1, 66, 558 S.E.2d 109, 152,
cert. denied, ____
U.S. ____, 154 L. Ed. 2d 71 (2002). In addition, “[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.”
State v. Harvell, 334 N.C. 356, 364, 432S.E.2d 125, 129 (1993). Additional instructions may be given “to
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.”
State v. Clegg, 142 N.C. App. 35, 45, 542 S.E.2d 269, 276,
(citing
N.C. Gen. Stat. § 15A-1234(a) (1999)),
appeal dismissed and disc.
review denied, 353 N.C. 453, 548 S.E.2d 529 (2001).
Defendant submitted to the court the following request for
jury instruction:
The Defendant request[s] 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 “the keeper of the
jail” within the context of the statutory
language in N.C.G.S. § 162-55, in accordance
with N.C.G.S. § 162-22 which states that “the
sheriff shall have the care and custody of the
jail in his county; and shall be, or appoint,
the keeper thereof.” 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.
The trial court denied defendant's request and instructed the jury
as follows, in pertinent part:
The 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.
During deliberations, the jury asked the following questions: (1)
“'In role of a bailiff, where does his role begin and end? Who is
under bailiff's custody?'” (2) “'Was prisoner committed to
Shepherd's custody?'” and (3) “'Definition between jailer and
bailiff.'” The court answered question (1) by stating:
[A] prisoner is under a bailiff's custody when
the bailiff has the duty, either alone or
together with other deputies, to maintain the
imprisonment of the prisoner.
So 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's part
of the bailiff's responsibility to maintain
the imprisonment of a prisoner or prisoners,
they're under the bailiff's custody.
The 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 “a 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.” After answering the jury's inquiries, the trial court
allowed the jury to resume deliberations but soon called them back
into the courtroom to hear the following additional instruction:
I didn't 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 -- in order for a prisoner to
be in the custody of a jailer, then it has to
be the jailer's responsibility to -- or partof his responsibility to maintain the
imprisonment of that particular prisoner.
We conclude the trial court did not err in its instructions to
the jury regarding the definition of “the keeper of a jail.” The
trial court properly denied defendant's 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, “the keeper of a jail” includes
those persons charged with the
care, custody, and maintenance of prisoners. We additionally
conclude the trial court's initial instructions correctly informed
the jury of the applicable law. Moreover, the court's responses to
the jury's inquiries provided clarity. Therefore, we find no error
in the trial court's instructions concerning the definition of “the
keeper of a jail.”
No error.
Judges McGEE and CALABRIA concur.
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