State v. Harvell , 236 N.C. App. 404 ( 2014 )

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).
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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).
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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
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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.
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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
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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
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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
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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:
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(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.
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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
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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.”
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IV. Conclusion
For the foregoing reasons, we find no error.
NO ERROR.
Judges STEELMAN and GEER concur.