On writ of certiorari pursuant to N.C.G.S. § 7A-32(b) to review the decision of the Court of Appeals, 126 N.C. App. 688, 486 S.E.2d. 475 (1997), reversing judgments entered by Davis (James C.), J., on 7 June 1996 in Superior Court, Cabarrus County, and remanding for a new trial. Heard in the Supreme Court 28 May 1998.
The opinion of the court was delivered by: Mitchell, Chief Justice.
The questions presented for review by the State's petition for writ of certiorari involve whether the Court of Appeals, in ordering a new trial, improperly construed the common law powers of bail bondsmen to allow them to break into a residence and use force against a third party when searching for their principal. For the reasons that follow, we affirm the decision of the Court of Appeals.
Defendants Charles Timothy Mathis and Barak Elliot Williamson were charged with misdemeanor breaking and entering. Mathis was also charged with misdemeanor assault on a female and misdemeanor injury to real property. They were tried and found guilty on 18 January 1996 in District Court, Cabarrus County. Defendants appealed to the Superior Court.
Defendants, appearing pro se, were tried de novo at the 3 June 1996 Civil Session of Superior Court, Cabarrus County. Evidence at trial tended to show the following. On 21 April 1995, William Tankersley, III, signed a bail bond in the amount of $1,500 with Marie's Bail Bonding Company to secure his release upon the charge of passing worthless checks. After Mr. Tankersley failed to appear in court, a warrant was issued for his arrest, and the bond was ordered forfeited.
Defendants Mathis and Willamson, licensed bail bondsmen, were employed by Marie's Bail Bonding. On 9 December 1995, defendants received a call from their employer telling them to find and apprehend Mr. Tankersley and surrender him to the Mecklenburg County Sheriff. Defendants went first to 1700 The Plaza in Charlotte, the residence of Ms. Joanne McKnight, Mr. Tankersley's sister-in-law. Not finding Mr. Tankersley there, they proceeded to his residence.
Mr. Tankersley resided at his mother's house at 8 Willowbrook Drive, Concord, North Carolina, together with his mother Mrs. Susan Nelson, her husband, Mr. Tankersley's sister Ms. Noto, and Ms. Noto's three children. Both Mrs. Nelson and Ms. Noto had dealt with Marie's Bail Bonding before. Ms. Noto had cosigned the bond on this occasion. The bond papers showed that Mr. Tankersley drove a white 1990 Mazda MX-6 and Mrs. Nelson drove a blue 1990 Toyota Camry.
Upon defendants' arrival at the residence, Ms. Noto told defendants that Mr. Tankersley was not home and that he had gone shopping with his mother in the white Mazda. Defendant Mathis testified that when he asked Ms. Noto if Ms. McKnight had called her, she answered "no," but she said that Ms. McKnight had spoken to Mr. Tankersley just before he left the house. After waiting outside the residence and watching it for two hours, defendants were relieved by another bail bondsman. At 6:47 p.m., defendant Mathis received a call indicating that Mr. Tankersley had entered the house.
Defendants drove back to Concord to Mr. Tankersley's residence where they observed the white Mazda parked outside the house. Defendant Mathis went to the back door of the house and knocked. Mrs. Nelson came to the door, stepped outside, and closed the glass storm door behind her. Defendant Mathis testified that he then identified himself, showed Mrs. Nelson his bail bondsman's license, and told her he was there to arrest her son.
Mrs. Nelson told defendant Mathis that her son was not at home and refused to allow him to enter. Mathis told her that he knew her son was there because his car was in the driveway. Mrs. Nelson said that the white Mazda was not her son's car and that he no longer used it. Defendant told Mrs. Nelson that if it would make her feel better, she could call the police and that he was "going to come in there . . . . I have a warrant, and I'm going to leave when I get my man."
Mrs. Nelson blocked the door, persisting in her refusal to allow defendant Mathis to enter. He testified that as he slowly opened the storm door, Mrs. Nelson began striking him about the chest and shoulders, yelling loudly. He then pushed the storm door against Mrs. Nelson, pinning her against the exterior wall of the house. As defendant Mathis pushed the door in one direction, Mrs. Nelson pushed in the other direction, which caused the clips holding the glass panel in place to pop out, damaging the door.
While defendant Mathis held the storm door, defendant Willamson entered the house. At this point, defendant Mathis released the storm door and also entered the house. They were followed by Mrs. Nelson, who then called the police. Defendant Williamson proceeded to search the rooms in the house but did not enter a locked front bedroom because Mr. Nelson told him a baby was asleep inside.
After arriving on the scene, the police asked defendants to step outside and told them that they would notify them when the arrest was made. At 2:00 a.m., having not received the call, defendants went back to Mr. Tankersley's residence. After they saw the white Mazda in the driveway, defendants flagged down a police officer who helped them take Mr. Tankersley into custody.
At the Conclusion of the evidence, the trial court conducted a jury charge conference. At that time, defendants requested that the trial court include in its final instructions to the jury instructions defining the authority of bail bondsmen to break and enter the home of a principal and to use such force as reasonably necessary to apprehend him. The trial court denied this request.
At the Conclusion of the trial court's final instructions to the jury, the trial court asked if the State or defendants wished to have any additional instructions given. Defendants again requested that appropriate instructions be given regarding the authority of bail bondsmen and made specific requests that the trial court read portions of certain opinions of this Court defining that authority as it related to the evidence presented at trial. The trial court again denied defendants' requests. Defendants were found guilty of all charges.
Defendants appealed to the North Carolina Court of Appeals. In a unanimous opinion, the Court of Appeals reversed the convictions and remanded defendants' cases for a new trial, concluding that the trial court had erred "by failing to instruct the jury on the common law and statutory authority of bail bondsmen to break and enter a principal's home to accomplish a lawful arrest." State v. Mathis, 126 N.C. App. 688, 693, 486 S.E.2d 475, 478 (1997). The Court of Appeals also concluded that the jury should have been instructed regarding the privilege of bail bondsmen to use reasonable force and the prohibition against their use of excessive force when apprehending their principal.
This Court granted the State's petition for certiorari on 5 February 1998. In analyzing the authority granted bail bondsmen, two issues are before us: (1) whether a bail bondsman may forcibly enter his principal's residence to search for and seize him; and (2) whether, in the process of gaining entry, a bail bondsman may overcome the resistance of a third party. We conclude that bail bondsmen have both such powers under the common law. Therefore, we answer both of these questions in the affirmative.
We begin our Discussion with a brief overview of the history of the American system of bail, *fn1 which is rooted in the English common law. Jonathan Drimmer, When Man Hunts Man: The Rights and Duties of Bounty Hunters in the American Criminal Justice System, 33 Hous. L. Rev. 731, 744 (1996) [hereinafter When Man Hunts Man]. Release on bail pending trial developed from "an ancient and extremely vigorous form of suretyship or hostageship, which rendered the surety liable to suffer the punishment that was hanging over the head of the released prisoner." 2 Sir Frederick Pollack & Frederic William Maitland, The History of English Law 589 (2d ed. 1959). The surety was, in effect, "bound body for body" with the principal. Id. at 590.
The now-common practice of allowing the surety to pay a sum of money should the accused not appear for trial was first utilized in the early thirteenth century. *fn2 By releasing the prisoner into the custody of the surety, not only was the return of the prisoner assured, but also, and importantly, his release strengthened the presumption of innocence fundamental to our system of Justice. Stack v. Boyle, 342 U.S. 1, 4, 96 L. Ed. 3, 6 (1951). Freedom of the accused protected him from the punishment of pretrial detention and also improved his opportunity to prepare a defense. Id. The release of the prisoner has always been considered a form of continued detention, and the common law viewed the surety's custody as a single, continuous event. "`A man's bail are looked upon as his jailers of his own choosing, and the person bailed is, in the eye of the law, for many purposes, esteemed to be as much in the prison of the court by which he is ...