Heard in the Court of Appeals August 14, 2014
This Decision is not final until expiration of the twenty-one day rehearing period. [North Carolina Rules of Appellate Procedure 32(b)]
Attorney General Roy Cooper, by Assistant Attorney General Josephine TettehMs., for the State.
Ms. Sharon L. Smith, for defendant-appellant.
Robert N. HUNTER, JR., Judge. Judges STEELMAN and GEER concur.
Appeal by defendant from judgment entered 30 August 2013 by
Judge Richard D. Boner Mecklenburg County. Nos. 12 CRS 222254-55, 12 CRS 34886 Superior Court.
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 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 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 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 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 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 ...