{ "id": 12175531, "name": "STATE OF NORTH CAROLINA v. MONTICE TERRILL HARVELL", "name_abbreviation": "State v. Harvell", "decision_date": "2014-09-05", "docket_number": "No. COA14-228", "first_page": "404", "last_page": "414", "citations": [ { "type": "official", "cite": "236 N.C. App. 404" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "657 S.E.2d 909", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640600 ], "year": 2008, "pin_cites": [ { "page": "915", "parenthetical": "quotation marks and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/657/0909-01" ] }, { "cite": "215 S.E.2d 146", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1975, "pin_cites": [ { "page": "149", "parenthetical": "\"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.\"" } ], "opinion_index": 0 }, { "cite": "287 N.C. 536", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564163 ], "year": 1975, "pin_cites": [ { "page": "541", "parenthetical": "\"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.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/287/0536-01" ] }, { "cite": "607 S.E.2d 325", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 11, "year": 2005, "pin_cites": [ { "page": "361" }, { "page": "327" }, { "page": "361" }, { "page": "326-27" }, { "page": "361" }, { "page": "327" }, { "page": "363" }, { "page": "328" } ], "opinion_index": 0 }, { "cite": "168 N.C. App. 359", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8469597 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/nc-app/168/0359-01" ] }, { "cite": "189 N.C. 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App.", "case_ids": [ 4179278 ], "year": 2010, "pin_cites": [ { "page": "424" } ], "opinion_index": 0, "case_paths": [ "/nc-app/207/0415-01" ] }, { "cite": "748 S.E.2d 50", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2013, "pin_cites": [ { "page": "57" }, { "page": "58" } ], "opinion_index": 0 }, { "cite": "720 S.E.2d 844", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2012, "pin_cites": [ { "page": "851", "parenthetical": "internal quotation marks and citation omitted" } ], "opinion_index": 0 }, { "cite": "218 N.C. App. 94", "category": "reporters:state", "reporter": "N.C. 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MONTICE TERRILL HARVELL" ], "opinions": [ { "text": "HUNTER, JR., Robert N., Judge.\nMontice Terrill Harvell (\u201cDefendant\u201d) 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 \u201ctaking\u201d and \u201ccarrying away\u201d without affording counsel an opportunity to be heard before answering the jury\u2019s inquiry. For the following reasons, we find no error.\nI. Facts and Procedural History\nOn 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 (\u201cMr. Perdue\u201d). Defendant\u2019s case came before the Mecklenburg County Superior Court on 28 August 2013. After a hearing, the trial court denied Defendant\u2019s 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.\nOn 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, unhol-stered 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\u2019s 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 \u201cfreeze,\u201d but the man turned and ran out the open back door. Mr. Perdue ran after the man.\nWhen Mr. Perdue got to his back door, the black male was running diagonally across his neighbor\u2019s 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\u2019s 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\u2019s house and up the street. Mr. Perdue continued to chase after the man yelling, \u201cStop running. I\u2019m going to catch you, I\u2019m going to get you.\u201d Mr. Perdue fired three more shots at the ground near the man intending to warn him not to return to Mr. Perdue\u2019s 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.\nDuring Mr. Perdue\u2019s encounter with the black male, Mr. Perdue was able to observe the man\u2019s 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.\nThat same day, Officer Robert Roberts (\u201cOfficer Roberts\u201d) with the Mecklenburg Police Department was on patrol in a marked patrol car near Mr. Perdue\u2019s neighborhood. Officer Roberts received the dispatch call and responded to Mr. Perdue\u2019s 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\u2019s neighborhood.\nAs 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 \u201cwait a minute[.]\u201d Officer Roberts then stepped out of his vehicle and approached Defendant on foot.\nUpon approaching Defendant, Officer Roberts observed that Defendant \u201cwas 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.\u201d 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\u2019s right pocket which Officer Roberts thought was odd because \u201c [i]t was hot out that day, [and there was] no reason to have winter gloves.\u201d\nOfficer Andrew Weisner (\u201cOfficer Weisner\u201d) with the Mecklenburg Police Department also responded to the dispatch call and arrived at Mr. Perdue\u2019s 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 \u201cthey had detained an individual and wanted me to go and identify him to see if that was the person that was in my house.\u201d\nOfficer 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\u2019 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\u2019s 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.\nAfter Officer Weisner\u2019s testimony, the State rested. Defendant moved to dismiss both charges, which the trial court denied. Defendant rested without presenting any evidence.\nThe 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 of 72 to 99 months. Defendant gave oral notice of appeal in open court.\nII. Jurisdiction\nDefendant\u2019s appeal from the superior court\u2019s final judgment lies of right to this Court pursuant to N.C. Gen. Stat. \u00a7\u00a7 7A-27(b), 15A-1444(a) (2013).\nIII. Analysis\nA. Show-up Identification\nDefendant contends that the trial court erred in denying his motion to suppress Mr. Perdue\u2019s show-up identification of Defendant. Specifically, Defendant argues the trial court erred because Mr. Perdue\u2019s mindset and other circumstances surrounding the \u201cinherently suggestive\u201d show-up identification gave rise to a substantial likelihood of irreparable misiden-tification. We disagree.\nGenerally, our review of a trial court\u2019s denial of a motion to suppress is \u201cstrictly limited to determining whether the trial judge\u2019s 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\u2019s ultimate conclusions of law.\u201d State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982).\nHere, Defendant made a pretrial motion to suppress Mr. Perdue\u2019s 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 \u201ca pretrial motion to suppress ... is not sufficient to preserve for appeal the issue of admissibility of evidence.\u201d 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 \u201chas elected to review unpreserved issues for plain error when they involve either (1) errors in the judge\u2019s instructions to the jury, or (2) rulings on the admissibility of evidence.\u201d 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 \u201cso basic, so prejudicial, so lacking in its elements that justice cannot have been done[.]\u201d State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (internal quotation marks and citation omitted). \u201cUnder 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.\u201d State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993).\nOur Supreme Court has recognized show-up identifications, whereby a single suspect is shown to a witness shortly after the crime, as inherently suggestive \u201cbecause the witness would likely assume that the police had brought [him] to view persons whom they suspected might be the guilty parties.\u201d 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, \u201csuggestive pretrial show-up identifications are not per se violative of a defendant\u2019s due process rights.\u201d State v. Watkins, 218 N.C. App. 94, 105, 720 S.E.2d 844, 851 (2012) (internal quotation marks and citation omitted). \u201cThe 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.\u201d State v. Jackson, _ N.C. App. _, _, 748 S.E.2d 50, 57 (2013).\nIn determining the likelihood of irreparable misidentification, we consider five factors: (1) the witness\u2019 opportunity to view the defendant at the time of the crime, (2) the witness\u2019 degree of attention, (3) the accuracy of the witness\u2019 prior description of the defendant, (4) the witness\u2019 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 \u201cunder the totality of the circumstances surrounding the crime, the identification possesses sufficient aspects of reliability.\u201d 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).\nHere, Mr. Perdue was able to view Defendant\u2019s 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\u2019s senses were in a heightened state. Mr. Perdue testified that the incident took him \u201cback into a combative mind state as if [he] was back in Iraq again\u201d and that \u201c[w]hen you\u2019re in combat, it\u2019s all - it\u2019s game on, all senses are on....\u201d\nDefendant argues that Mr. Perdue\u2019s description was inaccurate because he initially told officers that the suspect was \u201ctall\u201d and Defendant is only 57\u201d. Mr. Perdue accurately described the suspect as being a \u201cblack male in his mid twenties with dreadlocks and a goatee wearing a white T-shirt and dark colored jeans.\u201d Mr. Perdue testified that he did not remember describing the suspect as \u201ctall\u201d and that \u201c[h]e was not tall to my understanding of it.\u201d\nMr. Perdue was \u201cvery certain\u201d about his identification stating that he was \u201c[o]ne hundred percent\u201d 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 \u201c[h]e actually leaned out the window when he saw [Defendant] and immediately identified him.\u201d\nMr. Perdue\u2019s identification of Defendant occurred within fifteen to twenty minutes of Mr. Perdue finding the suspect in his home. Officers arrived at Mr. Perdue\u2019s house in fifteen to twenty minutes of the 911 call and within minutes Mr. Perdue was taken two streets over to identify the suspect.\nAlthough the show-up identification was suggestive, under the totality of the circumstances the show-up identification was not so imper-missibly suggestive as to cause irreparable mistaken identification and violate Defendant\u2019s constitutional right to due process. Accordingly, we hold that the trial court did not plainly err in denying Defendant\u2019s motion to suppress.\nB. Flight Instruction to the Jury\nDefendant 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.\n\u201c[Arguments] challenging the trial court\u2019s decisions regarding jury instructions are reviewed de novo by this Court.\u201d State v. Osorio, 196 N.C. App. 458, 466, 675 S.E.2d 144, 149 (2009). Under a de novo review, this Court \u201cconsiders the matter anew and freely substitutes its own judgment for that of the lower tribunal.\u201d State v. Williams, 362 N.C. 628, 632-33, 669 S.E.2d 290, 294 (2008) (internal quotation marks and citation omitted).\n\u201cThe prime purpose of a court\u2019s 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.\u201d State v. Cameron, 284 N.C. 165, 171, 200 S.E.2d 186, 191 (1973). \u201c[A] trial judge should not give instructions to the jury which axe not supported by the evidence produced at the trial.\u201d Id.\nOur Supreme Court has held that\nan instruction on flight is justified if there is some evidence in the record 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.\nState 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 \u201can action that was not part of Defendant\u2019s normal pattern of behavior . . . could be viewed as a step to avoid apprehension.\u201d State v. Hope, 189 N.C. App. 309, 319, 657 S.E.2d 909, 915 (2008) (quotation marks and citation omitted).\nIn 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 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\u2019s car but were unable to locate the defendant until about a month later. Id. This Court held that\nthe 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\u2019s] 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\u2019s instructing the jury on flight.\nId. at 363, 607 S.E.2d at 328.\nHere, similar to Ethridge, the State presented evidence that reasonably supports the theory that Defendant fled after breaking and entering into Mr. Perdue\u2019s 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\u2019s yard that Mr. Perdue fired the first shot. Thus, Defendant was already fleeing from the scene before Mr. Perdue fired any shots at Defendant.\nOfficer Roberts testified that not more than fifteen minutes after the 911 call, he saw Defendant on a dirt road that was \u201con the back side of [Mr. Perdue\u2019s] neighborhood\u201d and was \u201cnot a road that people use for traffic.\u201d He also testified that he saw Defendant coming from behind a row of houses that backed up to the dirt road \u201cwhich [was] rare\u201d because it was \u201cthrough high grass.\u201d Defendant also had \u201chitchhikers, little berrylike things that attach to your clothing after you run through the woods. ... all over his pants[.]\u201d 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.\nDefendant also argues that the flight instruction was prejudicial to Defendant because the only evidence against Defendant was Mr. Perdue\u2019s identification, and cites State v. Lee, 287 N.C. 536, 541, 215 S.E.2d 146, 149 (1975) (\u201cEvidence 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.\u201d) (internal quotation marks and 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\u2019s 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 \u201cvery certain\u201d Defendant was the man he saw inside his house and had \u201cno doubt about it.\u201d Thus, Defendant\u2019s 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.\nC. Clarifying Terms for the Jury\nDefendant also contends that the trial court violated statutory mandate by responding to a jury question regarding the distinction between \u201ctaking\u201d and \u201ccarrying away\u201d without affording counsel an opportunity to be heard. Defendant argues further that he was prejudiced by the trial court\u2019s error as the court\u2019s impromptu demonstration improperly assisted the State in proving the elements of the case. We disagree.\nPursuant to N.C. Gen. Stat. \u00a7 15A-1234 (2013),\n[a]fter the jury retires for deliberation, the judge may give appropriate additional instructions to:\n(1) Respond to an inquiry of the jury made in open court; or\n(2) Correct or withdraw an erroneous instruction; or\n(3) Clarify an ambiguous instruction; or\n(4) Instruct the jury on a point of law which should have been covered in the original instructions.\nFurther,\n[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.\nN.C. Gen. Stat. \u00a7 15A-1234(c).\nHere, after receiving a request from the jury on the clarification of the terms \u201ctaking\u201d and \u201ccarrying away,\u201d the trial court informed the parties that it was \u201cgoing to tell [the jury] the definition of taking is to lay hold of something with one\u2019s hands.\u201d 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.\nUnder N.C. Gen. Stat. \u00a7 15A-1234, the judge \u201cmust inform the parties generally of the instructions he intends to give ....\u201d N.C. Gen. Stat. \u00a7 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 farther clarification of the two terms.\nAdditionally, neither party objected to the instructions after they were given. The trial court specifically asked both parties if there were \u201c[a]ny objections to the instructions given by the [c]ourt.\u201d Defendant\u2019s counsel responded \u201c[n]o, your Honor.\u201d Therefore, the trial court did not violate N.C. Gen. Stat. \u00a7 15A-1234 in making its additional instructions.\nDefendant also argues that the trial court\u2019s failure to include the language that the State had the burden of proving all of the elements beyond a reasonable doubt after repeating 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 \u201ctaking\u201d and \u201ccarrying away.\u201d Since only thirty-seven minutes had passed since the trial court had reinstructed the jury on the elements and the State\u2019s burden of proving all elements beyond a reasonable doubt, Defendant was not prejudiced by the trial court omitting the language pertaining to the State\u2019s burden at this time.\nSince 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 \u201ctaking\u201d and \u201ccarrying away.\u201d\nIV. Conclusion\nFor the foregoing reasons, we find no error.\nNO ERROR.\nJudges STEELMAN and GEER concur.", "type": "majority", "author": "HUNTER, JR., Robert N., Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Josephine Tetteh, for the State.", "Sharon L. Smith, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. MONTICE TERRILL HARVELL\nNo. COA14-228\nFiled 5 September 2014\n1. Identification of Defendants\u2014show-up identification\u2014 motion to suppress\u2014suggestive\u2014no plain error\nThe trial court did not commit plain error in a felony breaking and entering and felony larceny case by denying defendant\u2019s motion to suppress a victim\u2019s show-up identification of defendant. Although it was suggestive, under the totality of the circumstances it was not so impermissibly suggestive as to cause irreparable mistaken identification and violate defendant\u2019s constitutional right to due process.\n2. Criminal Law\u2014instructions\u2014flight\nThe trial court did not err in a felony breaking and entering and felony larceny case by instructing the jury regarding flight. The State presented evidence that reasonably supported the theory that defendant fled after breaking and entering into the victim\u2019s home. Further, the instruction was not prejudicial given the victim\u2019s identification of defendant.\n3. Larceny\u2014felony larceny\u2014taking\u2014carrying away\u2014jury request for clarification\nThe trial court did not violate N.C.G.S. \u00a7 15A-1234 by responding to a jury question regarding the distinction between \u201ctaking\u201d and \u201ccarrying away\u201d after receiving a request from the jury on the clarification of the terms for felony larceny. Neither party objected to the instructions after they were given, and the trial court specifically asked both parties if there were any objections. Further, the parties were given an opportunity to be heard and defendant was not prejudiced by the additional instructions.\nAppeal 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.\nAttorney General Roy Cooper, by Assistant Attorney General Josephine Tetteh, for the State.\nSharon L. Smith, for defendant-appellant." }, "file_name": "0404-01", "first_page_order": 412, "last_page_order": 422 }