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. § 20-145

exempts police officers from speed laws when pursuing a violator

of the law, even this exemption does not apply to those driving
 - 7 -
“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.
 - 8 -
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
 - 9 -
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
 - 10 -
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.
 - 11 -
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
 - 12 -
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.