State v. McGee

NO. COA13-1161
NORTH CAROLINA COURT OF APPEALS
Filed: 3 June 2014
STATE OF NORTH CAROLINA,
v. Wayne County
No. 11 CRS 50145
MICHAEL KEVIN McGEE,
Appeal by defendant from judgment entered 20 February 2013
by Judge Edwin G. Wilson, Jr. in Wayne County Superior Court.
Heard in the Court of Appeals 18 February 2014.
Roy Cooper, Attorney General, by Amanda P. Little,
Assistant Attorney General, for the State.
Staples S. Hughes, Appellate Defender, by Katherine Jane
Allen, Assistant Appellate Defender, for defendant-
appellant.
STEELMAN, Judge.
The trial court did not err in instructing the jury that
bail bondsmen cannot violate North Carolina motor vehicle laws
in order to make an arrest. Defendant was not authorized to
operate his motor vehicle at a speed greater than was reasonable
and prudent under the existing conditions because of his status
as a bail bondsman. The trial court’s instruction to the jury
did not lessen the State’s burden of showing that defendant’s
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violation of North Carolina motor vehicle laws was intentional,
willful, wanton, or reckless.
I. Factual and Procedural History
On the morning of 31 August 2010, Michael Kevin McGee
(defendant), a bail bondsman, called 911 and advised law
enforcement that he was pursuing George Mays (Mays), a person
who had failed to appear in court. This pursuit was at a high
rate of speed in the Salem Church Road area of Goldsboro.
Defendant’s fiancée, Anecia Neal, was in the front passenger
seat of defendant’s car. Defendant requested assistance from
law enforcement in apprehending Mays. He was traveling at
speeds between 80 and 100 miles per hour in his pursuit of Mays.
Ivan Carter, another bail bondsman, was also pursuing Mays, in a
separate vehicle.
Salem Church Road is a two-lane road with a 45 miles per
hour speed limit. Mays passed a vehicle operated by Brenda Cox,
in a zone marked with a double yellow line. Defendant also
attempted to pass Cox’s vehicle, but did so at a curve, and lost
control of his vehicle, which went down an embankment.
Ms. Neal was trapped inside the vehicle, with serious
injuries. After being transported to Wayne Memorial Hospital,
Ms. Neal died of her injuries.
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On 7 May 2012, defendant was indicted for one count of
involuntary manslaughter and one count of misdemeanor death by
motor vehicle. On 20 February 2013, a jury found defendant
guilty of involuntary manslaughter. He was sentenced to a term
of 13 to 16 months imprisonment. This sentence was suspended and
defendant was placed on supervised probation for 36 months. The
court imposed a 3 month term of special probation in the
Department of Adult Correction as an intermediate sanction.
Defendant appeals.
II. Jury Instruction
In his only argument on appeal, defendant contends that the
trial court erred in instructing the jury that in the course of
pursuing a defendant, a bail bondsman may not violate North
Carolina motor vehicle laws. We disagree.
A. Standard of Review
The question of whether a trial court erred in instructing
the jury is a question of law reviewed de novo. State v. Osorio,
196 N.C. App. 458, 466, 675 S.E.2d 144, 149 (2009). The standard
of review set forth by this Court for reviewing jury
instructions is as follows:
This Court reviews jury instructions
contextually and in its entirety. The charge
will be held sufficient if it presents the law
of the case in such manner as to leave no
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reasonable cause to believe the jury was
misled or misinformed[.] . . . Under such a
standard of review, it is not enough for the
appealing party to show that error occurred in
the jury instructions; rather, it must be
demonstrated that such error was likely, in
light of the entire charge, to mislead the
jury.
State v. Blizzard, 169 N.C. App. 285, 296-97, 610 S.E.2d 245,
253 (2005) (citation and quotations omitted).
B. Analysis
In its instructions to the jury, the trial court stated
that: “[b]ail bondsmen can make an arrest; however they may not
violate the motor vehicle laws of North Carolina to do so.”
Defendant objected to this instruction. On appeal, defendant
makes three arguments concerning the trial court’s jury
instructions: (1) a bail bondsman may violate North Carolina
motor vehicle laws when apprehending a principal; (2) whether
the reasonableness of the means utilized by a bail bondsman in
apprehending a principal is a question of fact for the jury; and
(3) whether the trial court lessened the State’s burden of proof
by peremptorily instructing the jury that a bail bondsman cannot
violate North Carolina motor vehicle laws in the process of
arresting a principal.
1. Violation of State Motor Vehicle Laws
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North Carolina common law has long recognized that a bail
bondsman has sweeping powers to apprehend a principal and may
use such force as is reasonably necessary in that process. State
v. Mathis, 349 N.C. 503, 512, 509 S.E.2d 155, 160 (1998). This
right of apprehension, however, is limited and does not give a
bail bondsman unlimited powers.
N.C. Gen. Stat. § 20-145 states:
[S]peed limitations . . . 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, nor to fire
department or fire patrol vehicles when
traveling in response to a fire alarm, nor
to public or private ambulances and rescue
squad emergency service vehicles when
traveling in emergencies, nor to vehicles
operated by county fire marshals and civil
preparedness coordinators when traveling in
the performances of their duties . . .
N.C. Gen. Stat. § 20-145 (2013). The General Assembly created
specific exemptions to the motor vehicle laws pertaining to
speed for police, fire, and emergency service vehicles. There is
no similar statutory provision that exempts a bail bondsman from
complying with applicable speed limits when pursuing a
principal. Contrary to defendant’s argument that a bail bondsman
may use reasonable means, including exceeding applicable speed
limits, to apprehend a principal, a bail bondsmen is like any
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other citizen in that he or she must follow the state motor
vehicle laws. If the General Assembly had intended to exempt
bail bondsmen from complying with applicable speed limits when
pursuing a fugitive, it could have easily included such a
provision in N.C. Gen. Stat. § 20-145. It is not the role of the
courts to create exceptions to the motor vehicle laws enacted by
the General Assembly.
In this case, defendant pursued Mays at speeds exceeding
the posted speed limits by 30 to 55 miles per hour. We note that
defendant’s conduct in this case appears to have violated
several other motor vehicle safety statutes as well. However,
because the trial court submitted the charge of involuntary
manslaughter to the jury based solely upon defendant’s conduct
in operating his vehicle at a speed greater than was reasonable
and prudent under conditions then existing, we restrict our
analysis to that specific conduct.
Speed restrictions have been enacted “for the protection of
persons and property and in the interest of public safety, and
the preservation of human life.” State v. Norris, 242 N.C. 47,
53, 86 S.E.2d 916, 920 (1955). While N.C. Gen. Stat. § 20-145exempts police officers from speed laws when pursuing a violator
of the law, even this exemption does not apply to those driving
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“carelessly and heedlessly, in willful or wanton disregard of
the rights or safety of others, or without due circumspection
and at a speed or in any manner so as to endanger or be likely
to endanger any person or property[.]” Id. “An intentional,
willful, or wanton violation of a statute or ordinance, designed
for the protection of human life or limb, which proximately
results in injury or death, is culpable negligence.” Id. at 54,
86 S.E.2d at 921. Furthermore, “[c]ulpable negligence is such
recklessness or carelessness, proximately resulting in injury or
death, as imports a thoughtless disregard of consequences or a
heedless indifference to the safety and rights of others.” Id.
2. Reasonableness Standard for Bail Bondsman Actions
In State v. Mathis, our Supreme Court stated that bail
bondsmen may “use such force as is reasonably necessary to
overcome the resistance of a third party who attempts to impede
their privileged capture of their principal.” Mathis, 349 N.C.
at 514, 509 S.E.2d at 162. Defendant relies on this statement of
the law to argue that his right to apprehend Mays is only
limited by reasonableness and thus, whether the means used in
his attempted apprehension of Mays was reasonable is a question
of fact for the jury to decide.
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The elements of involuntary manslaughter are: “(1) an
unintentional killing; (2) proximately caused by either (a) an
unlawful act not amounting to a felony and not ordinarily
dangerous to human life, or (b) culpable negligence.” State v.
Davis, 198 N.C. App. 443, 446, 680 S.E.2d 239, 242 (2009)
(quoting State v. Hudson, 345 N.C. 729, 733, 483 S.E.2d 436, 439
(1997)). Culpable negligence is “[a]n intentional, willful, or
wanton violation of a statute or ordinance, designed for the
protection of human life or limb,” or “such recklessness or
carelessness, proximately resulting in injury or death, as
imports a thoughtless disregard of consequences or a heedless
indifference to the safety and rights of others.” Norris, 242
N.C. at 54, 86 S.E.2d at 921.
There are limitations upon the rights of bail bondsmen to
use reasonable force in the apprehension of a principal where
the rights of third parties are affected. For example, when
pursuing a principal into the home of a third party, the bail
bondsman may only enter the third party home if the principal
also resides there. Mathis, 349 N.C. at 513, 509 S.E.2d at 161.
Bail bond agreements contain the principal’s consent for the
bail bondsmen to “enter the residence of his principal and to
seize him.” Id. However, the principal cannot contract away the
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rights of third parties. Just as the bail bondsmen cannot enter
the homes of third parties without their consent, a bail
bondsmen pursuing a principal upon the highways of this State
cannot engage in conduct that endangers the lives or property of
third parties. Third parties have a right to expect that others
using the public roads, including bail bondsmen, will follow the
laws set forth in Chapter 20 of our General Statutes.
3. Jury Instructions and the State’s Burden of Proof
The trial court instructed the jury, concerning the charge
of involuntary manslaughter, as follows:
The Defendant has been accused of involuntary
manslaughter, which is the unintentional
killing of a human being by culpable
negligence.
Now I charge that for you to find the
Defendant is guilty of involuntary
manslaughter, the State must prove three
things beyond a reasonable doubt:
First, that the Defendant violated the law of
this state governing the operation of motor
vehicles by operating a vehicle at a greater
speed than is reasonable and prudent under
the conditions then existing. Bail bondsmen
can make an arrest; however, they may not
violate the motor vehicle laws of North
Carolina to do so.
Second, that the Defendant’s violation
constituted culpable negligence. The
violation of a motor vehicle law which
results in injury or death will constitute
culpable negligence if the violation is
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willful, wanton, or intentional. But, where
there is an unintentional or inadvertent
violation of the law, such violation standing
alone does not constitute culpable
negligence. The inadvertent or unintentional
violation of the law must be accompanied by
reckless of probable consequences of a
dangerous nature, when tested by the rule of
reasonable foresight, amounting altogether to
a thoughtless disregard of consequences or a
heedless indifference to the safety of
others.
Third, the State must prove that the
Defendant’s intentional, willful, wanton or
reckless violation of the law proximately
caused the victim’s death.
(Emphasis added)
The trial court properly instructed the jury that “[b]ail
bondsmen can make an arrest; however, they may not violate the
motor vehicle laws of North Carolina to do so.” This addition to
the North Carolina Pattern Jury Instruction for voluntary
manslaughter (NCPJI-Criminal 206.55) did not instruct the jury
as to whether the defendant violated any motor vehicle laws.
Rather, the instruction clarified that a bail bondsman’s right
to arrest a principal does not include the right to violate
motor vehicle laws. The issue that was presented to the jury was
whether the defendant violated N.C. Gen. Stat. §20-141(a), the
general statutory speed restrictions, by driving at a greater
speed than was reasonable and prudent given the circumstances.
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The jury had to find that defendant violated this motor vehicle
law in order to convict defendant of involuntary manslaughter or
misdemeanor death by vehicle. In instructing the jury concerning
this essential element of the charged crimes, the trial court
did not invade the province of the jury because the jury still
maintained the right to decide whether or not defendant violated
that law.
Finally, the added jury instruction did not decrease the
State’s burden of proof relating to that element of the charged
crime. The State’s burden was not the reasonableness standard
advocated by defendant, but rather a culpable negligence
standard requiring willful, wanton, or negligent conduct. The
additional language simply advised the jury that defendant’s
status as a bail bondsman did not exempt him from compliance
with the motor vehicle laws of this State. This Court has held
that it must “consider the instructions in the context of how a
reasonable juror might interpret the words.” State v. Flaherty,
55 N.C. App. 14, 23, 284 S.E.2d 565, 571 (1981) (citations and
quotations omitted). A reasonable juror would read the
challenged instruction as a clarification of the law at issue,
not a directive that defendant violated state motor vehicle laws
in his pursuit of Mays. The jury maintained discretion to decide
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whether defendant violated the applicable statute, whether that
conduct rose to the level of intentional, willful, wanton or
reckless conduct, and whether this conduct proximately caused
the victim’s death.
We hold that the trial court’s jury instructions were
proper. Defendant’s arguments are without merit.
IV. Conclusion
The trial court did not err in instructing the jury that
bail bondsmen cannot violate North Carolina motor vehicle laws
in order to make an arrest.
NO ERROR.
Judges McGEE and ERVIN concur.