State v. Harvell

NO. COA14-228

NORTH CAROLINA COURT OF APPEALS

Filed: 5 September 2014

STATE OF NORTH CAROLINA

v. Mecklenburg County
Nos. 12 CRS 222254-55
12 CRS 34886
MONTICE TERRILL HARVELL

Appeal by defendant from judgment entered 30 August 2013 by

Judge Richard D. Boner in Mecklenburg County Superior Court.

Heard in the Court of Appeals 14 August 2014.

Attorney General Roy Cooper, by Assistant Attorney General
Josephine Tetteh, for the State.

Sharon L. Smith, for defendant-appellant.

HUNTER, JR., Robert N., Judge.

Montice Terrill Harvell (“Defendant”) appeals from a

judgment sentencing him as a habitual felon for felony breaking

and entering and felony larceny. Defendant argues that the

trial court erred by denying his motion to suppress the show-up

identification and by giving a flight instruction to the jury.

Defendant also argues that the trial court violated statutory

mandate by responding to a jury question regarding the

distinction between “taking” and “carrying away” without
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affording counsel an opportunity to be heard before answering

the jury’s inquiry. For the following reasons, we find no

error.

I. Facts and Procedural History

On 11 June 2012, Defendant was indicted on one count of

felony breaking and entering and one count of felony larceny.

Defendant was also indicted on attaining habitual felon status

on 30 July 2012. On 19 March 2013, Defendant filed a motion to

suppress the in-court and out-of-court identification by Maurice

Perdue (“Mr. Perdue”). Defendant’s case came before the

Mecklenburg County Superior Court on 28 August 2013. After a

hearing, the trial court denied Defendant’s motion to suppress.

The jury found Defendant guilty of felony breaking and entering

and felony larceny and Defendant pled guilty to attaining

habitual felon status. The record and trial transcript tended

to show the following facts.

On 21 May 2012, around 2:15 p.m., Army veteran Mr. Perdue

left his Charlotte home on Panglemont Drive to pick up a

sandwich for lunch. Before leaving, Mr. Perdue locked his doors

and set his house alarm. Thirty minutes later, Mr. Perdue

returned home to find an unfamiliar Ford Explorer parked in his

driveway with the back door open. He also noticed that his
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front door was wide open. He parked his car, unholstered his

pistol, and approached the open front door of his residence.

Mr. Perdue looked in through the open front door and saw a black

male standing in front of his TV stand with Mr. Perdue’s

television and XBOX on the floor in front of the stand. At the

time, Mr. Perdue was approximately twenty feet from the man. He

ordered the black male to “freeze,” but the man turned and ran

out the open back door. Mr. Perdue ran after the man.

When Mr. Perdue got to his back door, the black male was

running diagonally across his neighbor’s yard. He then turned

and looked over his shoulder at Mr. Perdue. Mr. Perdue fired a

shot from his pistol at the black male. The black male turned

and cut in between two neighboring homes. Mr. Perdue ran in

between his house and his neighbor’s house toward his front yard

in order to cut the man off. When Mr. Perdue reached his front

yard, the black male ran out from in between the houses and

toward Mr. Perdue. Mr. Perdue was only twenty feet from the man

and was able to observe his full face as the man ran toward him.

Mr. Perdue fired two shots at the man who took off running

around the neighbor’s house and up the street. Mr. Perdue

continued to chase after the man yelling, “Stop running. I’m

going to catch you, I’m going to get you.” Mr. Perdue fired
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three more shots at the ground near the man intending to warn

him not to return to Mr. Perdue’s home. The black male ran up a

hill in the neighborhood and turned to look back at Mr. Perdue.

Mr. Perdue ran back to his house to call 911.

During Mr. Perdue’s encounter with the black male, Mr.

Perdue was able to observe the man’s face three different times.

While on the phone with the 911 operator, Mr. Perdue described

the man as a black male in his mid-twenties with dreadlocks and

a goatee wearing a white T-shirt and dark jeans.

That same day, Officer Robert Roberts (“Officer Roberts”)

with the Mecklenburg Police Department was on patrol in a marked

patrol car near Mr. Perdue’s neighborhood. Officer Roberts

received the dispatch call and responded to Mr. Perdue’s

neighborhood. In an attempt to cut off a fleeing suspect,

Officer Roberts drove past the neighborhood entrance and turned

down a small dirt road not normally used by traffic that backed

up to the houses in Mr. Perdue’s neighborhood.

As he was driving, Officer Roberts saw Defendant walk out

of the woods behind the houses. Defendant matched the

description Mr. Perdue gave to the 911 operator; he was a black

male in his mid-twenties with a goatee and dreadlocks and

wearing a white T-shirt. Defendant walked up to the window of a
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white Dodge Charger and appeared to briefly talk with the driver

before the car drove away. Officer Roberts pulled his marked

patrol car up to Defendant and asked him to “wait a minute[.]”

Officer Roberts then stepped out of his vehicle and approached

Defendant on foot.

Upon approaching Defendant, Officer Roberts observed that

Defendant “was hot . . . [and] sweating. He had . . . little

berry-like things that attach to your clothing after you run

through the woods. He had them all over his pants, [and Officer

Roberts] saw he had sandals on.” Officer Roberts advised

Defendant that there had been a crime in the area and that

Defendant matched the description of the suspect. Officer

Roberts asked Defendant if he would mind waiting for a few

minutes and asked to perform a pat down of Defendant to check

for weapons. Defendant agreed to wait and to the pat down.

During the pat down, Officer Roberts found a pair of winter

gloves in Defendant’s right pocket which Officer Roberts thought

was odd because “[i]t was hot out that day, [and there was] no

reason to have winter gloves.”

Officer Andrew Weisner (“Officer Weisner”) with the

Mecklenburg Police Department also responded to the dispatch

call and arrived at Mr. Perdue’s house within 15 minutes. When
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Officer Weisner arrived at the house, Officer Roberts radioed

that he had a suspect in custody matching the description Mr.

Perdue gave to the 911 operator. Mr. Perdue testified that

officers informed him “they had detained an individual and

wanted me to go and identify him to see if that was the person

that was in my house.”

Officer Weisner took Mr. Perdue two streets over to where

Officer Roberts was waiting with Defendant. At the time,

Defendant was handcuffed and seated in the back seat of Officer

Roberts’ patrol car with the back door open. When Mr. Perdue

arrived, Officer Roberts had Defendant step out of the patrol

car and face Officer Weisner’s vehicle. When he saw Defendant,

Mr. Perdue leaned out the window and immediately identified

Defendant as the person who had been inside his house and who he

subsequently chased.

After Officer Weisner’s testimony, the State rested.

Defendant moved to dismiss both charges, which the trial court

denied. Defendant rested without presenting any evidence.

The jury found Defendant guilty of felony breaking and

entering and felony larceny. Defendant pled guilty to habitual

felon status and the trial court sentenced Defendant to a term
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of 72 to 99 months. Defendant gave oral notice of appeal in

open court.

II. Jurisdiction

Defendant’s appeal from the superior court’s final judgment

lies of right to this Court pursuant to N.C. Gen. Stat. §§ 7A-

27(b), 15A-1444(a) (2013).

III. Analysis

A. Show-up Identification

Defendant contends that the trial court erred in denying

his motion to suppress Mr. Perdue’s show-up identification of

Defendant. Specifically, Defendant argues the trial court erred

because Mr. Perdue’s mindset and other circumstances surrounding

the “inherently suggestive” show-up identification gave rise to

a substantial likelihood of irreparable misidentification. We

disagree.

Generally, our review of a trial court’s denial of a motion

to suppress is “strictly limited to determining whether the

trial judge’s underlying findings of fact are supported by

competent evidence, in which event they are conclusively binding

on appeal, and whether those factual findings in turn support

the judge’s ultimate conclusions of law.” State v. Cooke, 306

N.C. 132, 134, 291 S.E.2d 618, 619 (1982).
 -8-
Here, Defendant made a pretrial motion to suppress Mr.

Perdue’s identification of Defendant as the individual who he

saw in his home on 21 May 2012. Defendant, however, did not

object to the admission of the in-court identification by Mr.

Perdue. This Court has held that “a pretrial motion to suppress

. . . is not sufficient to preserve for appeal the issue of

admissibility of evidence.” State v. Grooms, 353 N.C. 50, 66,

540 S.E.2d 713, 723 (2000); see also State v. Golphin, 352 N.C.

364, 405, 533 S.E.2d 168, 198 (2000). The North Carolina

Supreme Court “has elected to review unpreserved issues for

plain error when they involve either (1) errors in the judge’s

instructions to the jury, or (2) rulings on the admissibility of

evidence.” State v. Gregory, 342 N.C. 580, 584, 467 S.E.2d 28,

31 (1996) (internal quotation marks and citation omitted).

Plain error arises when the error is “so basic, so prejudicial,

so lacking in its elements that justice cannot have been

done[.]” State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378

(1983) (internal quotation marks and citation omitted). “Under

the plain error rule, defendant must convince this Court not

only that there was error, but that absent the error, the jury

probably would have reached a different result.” State v.

Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993).
 -9-
Our Supreme Court has recognized show-up identifications,

whereby a single suspect is shown to a witness shortly after the

crime, as inherently suggestive “because the witness would

likely assume that the police had brought [him] to view persons

whom they suspected might be the guilty parties.” State v.

Oliver, 302 N.C. 28, 45, 274 S.E.2d 183, 194 (1981) (internal

quotation marks and citation omitted) (alterations in original).

However, “suggestive pretrial show-up identifications are not

per se violative of a defendant's due process rights.” State v.

Watkins, 218 N.C. App. 94, 105, 720 S.E.2d 844, 851 (2012)

(internal quotation marks and citation omitted). “The test

under the due process clause as to pretrial identification

procedures is whether the totality of the circumstances reveals

pretrial procedures so unnecessarily suggestive and conducive to

irreparable mistaken identification as to offend fundamental

standards of decency, fairness and justice.”

State v. Jackson, ___ N.C. App. ___, ___, 748 S.E.2d 50, 57

(2013).

In determining the likelihood of irreparable

misidentification, we consider five factors: (1) the witness’

opportunity to view the defendant at the time of the crime, (2)

the witness’ degree of attention, (3) the accuracy of the
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witness’ prior description of the defendant, (4) the witness’

level of certainty at the time of confrontation, and (5) the

length of time between the crime and the confrontation. State

v. Rawls, 207 N.C. App. 415, 424, 700 S.E.2d 112, 118–19 (2010);

Harris, 308 N.C. at 164, S.E.2d at 95. In evaluating these

factors, we consider whether “under the totality of the

circumstances surrounding the crime, the identification

possesses sufficient aspects of reliability.” State v. Jackson,

___ N.C. App. ___, ___, 748 S.E.2d 50, 58 (2013); see also State

v. Breeze, 130 N.C. App. 344, 352, 503 S.E.2d 141, 147 (1998).

Here, Mr. Perdue was able to view Defendant’s face three

separate times during the encounter. During two of those

observations, Mr. Perdue was only twenty feet from Defendant.

At the time of the incident, Mr. Perdue’s senses were in a

heightened state. Mr. Perdue testified that the incident took

him “back into a combative mind state as if [he] was back in

Iraq again” and that “[w]hen you’re in combat, it’s all – it’s

game on, all senses are on . . . .”

Defendant argues that Mr. Perdue’s description was

inaccurate because he initially told officers that the suspect

was “tall” and Defendant is only 5’7”. Mr. Perdue accurately

described the suspect as being a “black male in his mid twenties
 -11-
with dreadlocks and a goatee wearing a white T-shirt and dark

colored jeans.” Mr. Perdue testified that he did not remember

describing the suspect as “tall” and that “[h]e was not tall to

my understanding of it.”

Mr. Perdue was “very certain” about his identification

stating that he was “[o]ne hundred percent” certain that

Defendant was the man he had seen inside his living room.

Officer Weisner also testified that Mr. Perdue did not struggle

in identifying Defendant, but rather “[h]e actually leaned out

the window when he saw [Defendant] and immediately identified

him.”

Mr. Perdue’s identification of Defendant occurred within

fifteen to twenty minutes of Mr. Perdue finding the suspect in

his home. Officers arrived at Mr. Perdue’s house in fifteen to

twenty minutes of the 911 call and within minutes Mr. Perdue was

taken two streets over to identify the suspect.

Although the show-up identification was suggestive, under

the totality of the circumstances the show-up identification was

not so impermissibly suggestive as to cause irreparable mistaken

identification and violate Defendant’s constitutional right to

due process. Accordingly, we hold that the trial court did not

plainly err in denying Defendant’s motion to suppress.
 -12-
B. Flight Instruction to the Jury

Defendant contends that the trial court erred in

instructing the jury regarding flight where there was no

evidence that Defendant fled after committing the crime. We

disagree.

“[Arguments] challenging the trial court’s decisions

regarding jury instructions are reviewed de novo by this Court.”

State v. Osorio, 196 N.C. App. 458, 466, 675 S.E.2d 144, 149

(2009). Under a de novo review, this Court “considers the

matter anew and freely substitutes its own judgment for that of

the lower tribunal.” State v. Williams, 362 N.C. 628, 632–33,

669 S.E.2d 290, 294 (2008) (internal quotation marks and

citation omitted).

“The prime purpose of a court’s charge to the jury is the

clarification of issues, the elimination of extraneous matters,

and a declaration and an application of the law arising on the

evidence.” State v. Cameron, 284 N.C. 165, 171, 200 S.E.2d 186,

191 (1973). “[A] trial judge should not give instructions to

the jury which are not supported by the evidence produced at the

trial.” Id.

Our Supreme Court has held that

an instruction on flight is justified if
there is some evidence in the record
 -13-
reasonably supporting the theory that the
defendant fled after the commission of the
crime charged. Mere evidence that defendant
left the scene of the crime is not enough to
support an instruction on flight. There must
also be some evidence that defendant took
steps to avoid apprehension.

State v. Blakeney, 352 N.C. 287, 314, 531 S.E.2d 799, 819 (2000)

(internal quotation marks and citations omitted). Further, we

have also held that “an action that was not part of Defendant's

normal pattern of behavior . . . could be viewed as a step to

avoid apprehension.” State v. Hope, 189 N.C. App. 309, 319, 657

S.E.2d 909, 915 (2008) (quotation marks and citation omitted).

In State v. Ethridge, 168 N.C. App. 359, 607 S.E.2d 325

(2005), this Court upheld the flight instruction to the jury

where the State presented some evidence of flight. In Ethridge,

the defendant was charged with breaking and entering, larceny

after breaking and entering, and possession of stolen goods.

Id. at 361, 607 S.E.2d at 327. The defendant broke into a

vacant home and removed more than thirty items from the home,

including furniture and air conditioners. Id. at 361, 607

S.E.2d at 326–27. A neighbor noticed a car that was backed into

the driveway of the vacant home with the tailgate open and with

what appeared to be a coffee table hanging out the back. Id. at

361, 607 S.E.2d at 327. The neighbor recognized one of the men
 -14-
and recognized the car, which the neighbor saw drive away from

the house, as belonging to the defendant. Id. Police officers

quickly located the defendant’s car but were unable to locate

the defendant until about a month later. Id. This Court held

that

the State provided some evidence of flight.
Defendant left the crime scene shortly after
[the neighbor] arrived home. Furniture that
had been in the house was found scattered in
the backyard. While the police found [the
defendant’s] vehicle, they were not able to
locate [the defendant] for several weeks.
This evidence reasonably supports the theory
that [the defendant] fled after commission
of the crimes charged. We therefore find no
error with the trial court’s instructing the
jury on flight.

Id. at 363, 607 S.E.2d at 328.

Here, similar to Ethridge, the State presented evidence

that reasonably supports the theory that Defendant fled after

breaking and entering into Mr. Perdue’s home. Defendant argues

that he ran out the back door after Mr. Perdue pulled his

firearm and that Defendant fled to avoid being shot. Mr.

Perdue, however, testified that when he approached his front

door and saw Defendant standing in his living room, Defendant

looked at Mr. Perdue and then took off running out the back

door. It was not until Defendant was already outside the home

and running across the neighbor’s yard that Mr. Perdue fired the
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first shot. Thus, Defendant was already fleeing from the scene

before Mr. Perdue fired any shots at Defendant.

Officer Roberts testified that not more than fifteen

minutes after the 911 call, he saw Defendant on a dirt road that

was “on the back side of [Mr. Perdue’s] neighborhood” and was

“not a road that people use for traffic.” He also testified

that he saw Defendant coming from behind a row of houses that

backed up to the dirt road “which [was] rare” because it was

“through high grass.” Defendant also had “hitchhikers, little

berry-like things that attach to your clothing after you run

through the woods. . . . all over his pants[.]” Although

Defendant in this case was located shortly after the crime,

unlike in Ethridge where the defendant was not located for

weeks, the evidence still reasonably supports the theory that

Defendant fled after the commission of the crime.

Defendant also argues that the flight instruction was

prejudicial to Defendant because the only evidence against

Defendant was Mr. Perdue’s identification, and cites State v.

Lee, 287 N.C. 536, 541, 215 S.E.2d 146, 149 (1975) (“Evidence of

flight is not only competent but often considered material . . .

where there is a dispute or doubt as to the identity . . . [of]

the perpetrator of the crime.”) (internal quotation marks and
 -16-
citations omitted). In Lee, evidence tended to show that the

witness did not consistently identify the defendant as one of

the assailants. Id. In this case, however, we held above that

Mr. Perdue’s identification contained sufficient aspects of

reliability and he has consistently identified Defendant as the

person he saw in his home. Mr. Perdue provided an accurate

description of the suspect and was “very certain” Defendant was

the man he saw inside his house and had “no doubt about it.”

Thus, Defendant’s reliance on Lee is misplaced. Accordingly,

the flight instruction was not prejudicial and we hold that the

trial court did not err in instructing the jury on flight.

C. Clarifying Terms for the Jury

Defendant also contends that the trial court violated

statutory mandate by responding to a jury question regarding the

distinction between “taking” and “carrying away” without

affording counsel an opportunity to be heard. Defendant argues

further that he was prejudiced by the trial court’s error as the

court’s impromptu demonstration improperly assisted the State in

proving the elements of the case. We disagree.

Pursuant to N.C. Gen. Stat. § 15A-1234 (2013),

[a]fter the jury retires for deliberation,
the judge may give appropriate additional
instructions to:
 -17-
(1) Respond to an inquiry of the jury made
in open court; or
(2) Correct or withdraw an erroneous
instruction; or
(3) Clarify an ambiguous instruction; or
(4) Instruct the jury on a point of law
which should have been covered in the
original instructions.

Further,

[b]efore the judge gives additional
instructions, he must inform the parties
generally of the instructions he intends to
give and afford them an opportunity to be
heard. The parties upon request must be
permitted additional argument to the jury if
the additional instructions change, by
restriction or enlargement, the permissible
verdicts of the jury. Otherwise, the
allowance of additional argument is within
the discretion of the judge.

N.C. Gen. Stat. § 15A-1234(c).

Here, after receiving a request from the jury on the

clarification of the terms “taking” and “carrying away,” the

trial court informed the parties that it was “going to tell [the

jury] the definition of taking is to lay hold of something with

one’s hands.” Neither party objected at that time to the

proposed instructions. The trial court then instructed the jury

on this definition and further demonstrated the difference

between the two terms with a coffee cup. The trial court also

repeated the elements of felony larceny.
 -18-
Under N.C. Gen. Stat. § 15A-1234, the judge “must inform

the parties generally of the instructions he intends to give . .

. .” N.C. Gen. Stat. § 15A-1234(c) (emphasis added). Here, the

trial court informed the parties of the additional instructions

it intended to give and provided that exact definition to the

jury. The trial court also provided further clarification of

the two terms by visual demonstration. Although the trial court

did not inform the parties of its visual demonstration, the

statute only requires that the trial court inform the parties

generally. The trial court provided the definition as stated

and the demonstration was consistent with the provided

definition, only providing further clarification of the two

terms.

Additionally, neither party objected to the instructions

after they were given. The trial court specifically asked both

parties if there were “[a]ny objections to the instructions

given by the [c]ourt.” Defendant’s counsel responded “[n]o,

your Honor.” Therefore, the trial court did not violate N.C.

Gen. Stat. § 15A-1234 in making its additional instructions.

Defendant also argues that the trial court’s failure to

include the language that the State had the burden of proving

all of the elements beyond a reasonable doubt after repeating
 -19-
the elements of felony larceny improperly aided the State in

proving its case. The jury previously submitted two inquiries

to the trial court regarding which elements it was required to

find. At 10:05 a.m., the jury entered the courtroom and the

trial court further instructed the jury that the State was

required to prove beyond a reasonable doubt all elements of the

underlying offenses and repeated the required elements. Just

over thirty minutes later, at 10:42 a.m., the jury was brought

back into the courtroom for the additional instructions on

“taking” and “carrying away.” Since only thirty-seven minutes

had passed since the trial court had reinstructed the jury on

the elements and the State’s burden of proving all elements

beyond a reasonable doubt, Defendant was not prejudiced by the

trial court omitting the language pertaining to the State’s

burden at this time.

Since the parties were given an opportunity to be heard and

Defendant was not prejudiced by the additional instructions, we

hold the trial court did not err in clarifying the elements of

the underlying offenses and the distinction between “taking” and

“carrying away.”
 -20-
IV. Conclusion

For the foregoing reasons, we find no error.

NO ERROR.

Judges STEELMAN and GEER concur.