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No. COA14-228 JUDICIAL DISTRICT TWENTY-SIX

NORTH CAROLINA COURT OF APPEALS

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STATE OF NORTH CAROLINA )) From Mecklenburg

v. ) 12 CRS 222254-55) 12 CRS 34886

MONTICE TERRILL HARVELL ))

***********************************************DEFENDANT-APPELLANT’S BRIEF

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ISSUES PRESENTED

I. WHETHER THE TRIAL COURT ERRED IN DENYING MR. HARVELL’S MOTION TO SUPPRESS THE SHOWUP IDENTIFICATION IN VIOLATION OF HIS CONSTITUTIONAL RIGHTS?

II. WHETHER THE TRIAL COURT ERRED IN GIVING FLIGHT INSTRUCTION OVER THE DEFENSE’S OBJECTION?

III. WHETHER 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?

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PROCEDURAL HISTORY

Harvell was tried at the August 26, 2013 Criminal Session of the

Mecklenburg County Superior Court, the Honorable Richard D. Boner presiding,

on charges of felony breaking and entering, felony larceny and attaining habitual

felon status. Prior to trial, the court denied Harvell’s motion to suppress

identification evidence. Harvell was convicted of breaking and entering and

larceny and pled guilty to habitual felon status. He was sentenced to a term of 72

to 99 months. Harvell gave oral notice of appeal in open court on August 30,

2013. (ROA p. 57) The settled record on appeal was filed on February 24, 2014.

Harvell received a ten-day extension to file his brief on or before April 7, 2014.

GROUNDS FOR APPELLATE REVIEW

Harvell appeals from the final judgment of the Superior Court of

Mecklenburg County, pursuant to N.C.G.S. §§ 7A-27(b) and 15A-1444(a).

STATEMENT OF FACTS

Trial Evidence

Around 2:15 pm on May 21, 2012, army veteran Maurice Perdue left his

home to go get lunch. No one else was at the house except for Perdue’s dog.

When Perdue returned about a half hour later, he noticed a blue Ford Explorer

backed into his driveway. The front door of Perdue’s house was standing wide

open, and the home alarm was going off. Perdue, who was on the phone with his

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girlfriend, hung up the phone and unholstered his gun. Perdue approached the

front door and saw a man standing in front of his television stand. The television

and X-Box were on the floor. Perdue was about 20 feet away from the perpetrator.

After seeing Perdue, the perpetrator turned and ran out of the back door of the

house. Perdue followed, firing several rounds at the fleeing man. (T Vol. II, p. 39-

41, 57) Perdue continued firing as the perpetrator ran up the street of the

subdivision. (Id., p. 44-45) Perdue testified that the perpetrator was very fast.

(Id.) Perdue had never seen the perpetrator before. (Id.) Perdue finally gave up

the chase and returned to his home to call 911. (Id., p. 48; State’s Exhibit 1)

Perdue gave a description of the perpetrator as having dreadlocks and a goatee, and

wearing a white t-shirt and jeans. He said that if he saw the perpetrator again he

would blow his head off. (Id., p. 58) The police arrived in 10 to 15 minutes. (Id.,

p. 54) Perdue told police that he was scared during the encounter and felt like he

was back in combat in Iraq. (Id. p. 59) Perdue initially told police that the

perpetrator was tall, but described him as 5’7” or 5’8” in court. (Id., p. 60-62)

After the police arrived at Perdue’s house, they took him two streets over to

identify a suspect they had detained, Mr. Harvell. (Id., p. 55) Perdue identified

him as the perpetrator. (Id.) It had been about 15 to 20 minutes since he saw the

perpetrator in his home. (Id.) Perdue identified Harvell in court as the perpetrator

(Id.)

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Officer Robert Roberts of the Charlotte-Mecklenburg Police Department

was responding to the scene when he spotted a black male, Harvell, walking out

from behind a row of houses in the back of Perdue’s neighborhood. (T Vol. II, p.

70) He was dark-skinned, with dreadlocks and a goatee. (Id.) It was an area of

high grass, where it was unusual to see someone walking. (Id.) Roberts saw

Harvell approach a white car that was coming down the road. He appeared to

speak briefly with the driver. (Id., p. 72) After the car drove off, Roberts stopped

Harvell. (Id.) According to Roberts, Harvell was sweating and had little berry-like

pods attached to his pants and sandals, as if he had been running through the

woods. (Id.) Roberts patted Harvell down. He found no weapons or anything of

interest other than a pair of gloves in his pocket. (Id., p. 77)

On cross-examination, Roberts admitted that Harvell was not running when

Roberts first spotted him and did not run away when he saw Roberts’ marked

police car. (Id., p. 81-82) Roberts further admitted that it was a hot day and that

he was also sweating. Roberts testified that he was about 6 feet tall and that

Harvell was several inches shorter than he. (Id.)

Officer Andrew Weisner testified that he drove Perdue to where Harvell had

been detained in order to conduct a showup identification. Weisner testified that

Perdue identified Harvell as the perpetrator from a distance of about 20 feet. (T

Vol. II, p. 90-91) Weisner testified that he did not know what investigation, if

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anything, was done with regard to the blue Ford Explorer. (Id., p. 92-93) The

State presented no evidence tying Harvell to the vehicle.

Motion to Suppress

Defense counsel filed a motion to suppress the in-court and out-of-court

identifications by Perdue, asserting that the circumstances of the showup

identification created a substantial likelihood of irreparable misidentification. (R

p. 20-33) Counsel argued that Perdue had only a limited opportunity to view the

perpetrator at the time of the crime, Perdue’s own statements indicated that he was

“scared” and under stress during the incident, and that Perdue’s initial description

of the perpetrator as “tall” was not accurate given that Harvell is only 5’7” in

height. Counsel attached the statement Perdue made to police as well as several

officers’ field notes.

The trial court held a hearing on the motion to suppress prior to trial. Perdue

testified that when he looked inside his house, the perpetrator was about 20 feet

away. As soon as the perpetrator saw Perdue, he “bolted” out the back door. (T

Vol. I, p. 8) Perdue testified that he had the perpetrator in his sights for “a minute,

minute and a half.” (Id., p. 9) He stated that he saw the perpetrator’s face as he

looked back over his shoulder while Perdue was firing shots at him. Perdue also

stated that the perpetrator ran towards him from between his neighbors’ houses,

after Perdue cut around the front, and that Perdue fired two shots at the perpetrator

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as he ran towards him. (Id.) Perdue testified that when police drove him to the

showup identification, he was “very much certain” that Harvell was the

perpetrator. (Id., p. 12)

Perdue did not recall telling police that the perpetrator was “tall,” but

admitted that he told police he was scared during the incident and felt like he was

back in Iraq. (Id., p. 13-14) On cross-examination, Perdue described the

incident as follows:

Q: Okay. In what manner did it take you back to combat, sir?

A: I take it, sir, that you’re not a veteran. And I’m not trying to disrespect you at all, but when I approached my house, this individual, I could not see his right hand. I didn’t know if he had a firearm, I didn’t know if anybody else had a firearm. And immediately my mindset is, there’s a target, someone wants to hurt you, somebody wants to do you harm.

Q: That was your immediate reaction.

A: I’m not saying that’s my reaction, but that’s what I'm trying to explain to you my mindset as a combat veteran. When you’re in combat, it’s all – it’s game on, all senses are on, it’s your life or the other person’s life. That’s the best way I can explain it to you, sir.

Q: Okay. So that was your immediate – I’m not trying to -- that was your immediate reaction to the situation, correct?

A: I didn’t say my reaction. That was my mindset. My immediate reaction was, he ran, I ran after him. Had I seen a firearm in his hand, I would have shot him.

Q: Well, you did fire at least four shots, correct?

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A: My intention was not to -- I didn’t line up as to kill him. I know you can't shoot a man in his back, but I had to let him know don’t come back here to my house.

(Id., p. 14-15)

With regard to the showup identification, the police told Perdue they had

“captured somebody” they wanted Perdue to identify. (Id.) When Perdue arrived

at the showup, Harvell was in the back of a police car. The police took him out of

the car and let Perdue look at him. Perdue admitted that he never got within 20

feet of the perpetrator. Perdue testified that he saw the perpetrator’s face three

times: once as he glanced over the back of his shoulder, once when the perpetrator

ran towards him in the yard, and once when the perpetrator looked back after

Perdue chased him down the street. Perdue shot his gun approximately 5 to 6

times during this period. Perdue testified that the showup occurred about 15

minutes after the chase. (Id., p. 16-19)

The trial court ruled in open court and filed an order on August 29, 2013,

denying the motion to suppress. (T Vol. I, p. 21-25; R p. 34-37) Among the trial

court’s findings of fact was the following finding regarding Perdue’s mindset

during the incident:

6. During the chase and at the time that he gave a description to the police dispatcher, Mr. Perdue was excited. Mr. Perdue’s senses were in a heightened state, similar to that he had experienced as a combat soldier in Iraq.

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(R p. 36)

Based on its factual findings, the trial court concluded that Perdue’s showup

identification of Harvell was reasonably reliable and did not create a substantial

likelihood of misidentification, “given Mr. Perdue’s opportunity to observe the

facial features of the perpetrator, his highly focused degree of attention, and his

level of certainty in the identification […]” (R p. 36, ¶ 1) The court further

concluded that Perdue’s identification of Harvell as the perpetrator did not violate

Harvell’s federal or state constitutional rights. (R p. 36-37, ¶¶ 2, 4)

Jury Instructions

Defense counsel objected to the instruction on flight, both before and after it

was given. (T Vol. II, p. 96, 106) The court’s instruction on flight was as follows:

Now, the state contends that the defendant in this case fled. Evidence of flight may be considered by you, together with all the other facts and circumstances in this case in determining whether the combined circumstances amount to an admission or show a consciousness of guilt. However, proof of this circumstance alone is not sufficient in and of itself to establish the defendant's guilt.

(Id, p. 101).

During its charge, the trial court gave the jury the following instruction on

felonious larceny:

Now, for you to find the defendant guilty of felonious larceny, the state must prove six things beyond a reasonable doubt: First, that the defendant took property belonging to another person; second, that the defendant carried away the property. It is not

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necessary that the property be carried any specific distance. The slightest movement of the property is sufficient. Third, that the owner of the property did not consent to its taking and carrying away; fourth, that at the time of the taking the defendant intended to deprive the owner of its use permanently; fifth, that the defendant knew that he was not entitled to take the property; and, sixth, that the property was taken after a breaking or entering.

(R p. 43; T Vol. II, p. 103)

During deliberations, the jury asked the court whether it had to find all of the

elements for each charge or just one or more of the elements. (R p. 47) The court,

without first consulting the parties, reinstructed the jury on the elements of

breaking and entering and felonious larceny. (T Vol. III, p. 111-112) The jury

later asked the court to explain the terms “taking” and “carrying away” in the

context of the felonious larceny charge, expressing confusion over what proof was

necessary:

(1) What is the difference between stipulation #1- “took property” and stipulation #2 “carried away” (slightest movement) of property? Ie, is stipulation #2 intended to be a clarification and definition of stipulation #1? Does “carrying away” as defined in the law constitute “taking” property? If not, what does constitute “taking?”

(2) Does the word “taking” appear in stipulation #6? Is the definition of “taking in stipulation 6 the same as in stipulation #1?

(R p. 48)1

1 It appears the jury was using the term “stipulation” in lieu of “element.”

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The court responded to the jury’s inquiry as follows:

THE COURT: They want to know what the difference between taking and carrying away is, and they want to know -- now, I'm going to tell them the definition of taking is to lay hold of something with one's hands. All right. Bring them back in.

(The jury entered the courtroom at 10:42 a.m.)

THE COURT: All right, Mr. Foreman. Let's see if I can answer these questions. You want to know what the word taking means?

JUROR NUMBER 12: Yes, sir, your Honor.

THE COURT: Let me demonstrate something. Taking means laying hold of something with your hands.

JUROR NUMBER 12: Yes, sir.

THE COURT: For example, this coffee cup, that's taking. Carrying away means (demonstrating). That's carrying away.

JUROR NUMBER 12: Thank you, your Honor.

THE COURT: You got that?

JUROR NUMBER 12: Thank you, your Honor.

(T Vol. III, p. 113)

The court then repeated all of the elements of the larceny charge, but failed

to include the language from the pattern instruction that the State had the burden of

proving all of the elements beyond a reasonable doubt. (Id., p. 113-114)

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ARGUMENT

I. THE TRIAL COURT ERRED IN DENYING HARVELL’S MOTION TO SUPPRESS PERDUE’S IDENTIFICATION OF HIM AS THE PERPETRATOR.

Where Perdue’s mindset and other circumstances surrounding the inherently

suggestive showup identification gave rise to a substantial likelihood of irreparable

misidentification, the trial court erred in denying the motion to suppress.

Standard of Review

“When a motion to suppress identification testimony is made, the trial judge

must conduct a voir dire hearing and make findings of fact to support his

conclusion of law and ruling as to the admissibility of the evidence.” State v.

Freeman, 313 N.C. 539, 544, 330 S.E.2d 465, 470 (1985); N.C.G.S. § 15A-977(f).

The reviewing court must determine whether the findings are supported by

competent evidence. Findings of fact which are supported by competent evidence

are binding on appeal. The trial court’s conclusions of law are reviewed de novo

on appeal. See State v. Watson, 179 N.C. App. 228, 236, 634 S.E.2d 231, 237

(2006). The conclusions of law must be supported by the findings of fact and

“must be legally correct, reflecting a correct application of applicable legal

principles to the facts found.” State v. Fernandez, 346 N.C. 1, 11, 484 S.E.2d 350,

357 (1997) (citation omitted).

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Preservation of Error

Defense counsel objected to Perdue’s identification of Harvell as the

perpetrator at trial. (T Vol. II, p. 42) However, counsel did not object when

Perdue and Officer Weisner were asked specifically about the showup

identification. Because Perdue’s identification of Harvell was based on the

showup, the defense did not need to assert another objection to the same line of

questioning. See N.C.G.S. § 15A-1446(d)(10). Nevertheless, Harvell also asserts

plain error in the event that the Court determines that he failed to preserve the issue

by not objecting again after Perdue’s initial identification of him as the perpetrator.

Plain error is an error that is “so fundamental as to amount to a miscarriage of

justice or which probably resulted in the jury reaching a different verdict than it

otherwise would have reached.” State v. Parker, 350 N.C. 411, 427, 516 S.E.2d

106, 118 (1999) (citation omitted).

Legal Principles

Unreliable identification evidence is prohibited by both the North Carolina and

United States Constitutions. U.S. Const. Amend. XIV; N.C. Const. art. I, §§ 19, 23,

24. Identification evidence violates due process and must be excluded where a

pretrial identification procedure was so impermissibly suggestive as to give rise to a

very substantial likelihood of misidentification. Simmons v. United States, 390 U.S.

377 (1968); State v. Pigott, 320 N.C. 96, 357 S.E.2d 631 (1987).

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Evaluating a due process claim involves a two-step process. State v. Leggett,

305 N.C. 213, 220, 287 S.E.2d 832, 827 (1982). First, the court must determine

whether an impermissibly suggestive procedure was used in obtaining the

identification. If that question is answered affirmatively, the second inquiry concerns

whether under all the circumstances, the suggestive procedure employed gave rise to

a substantial likelihood of irreparable misidentification. Id. The factors to be

considered in evaluating the likelihood of irreparable misidentification include:

(1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of the witness’ prior description of the criminal; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the crime and the confrontation.

Pigott, at 99-100, 357 S.E.2d at 634(citation omitted).

Showup identifications, showing a lone suspect to a witness for identification

purposes, have been criticized by both our Supreme Court and the United States

Supreme Court. See Stovall v. Denno, 388 U.S. 293, 302 (1967)(stating that “[t]he

practice of showing suspects singly to persons for the purpose of identification, and

not as part of a lineup, has been widely condemned.”); State v. Turner, 305 N.C. 356,

364, 289 S.E.2d 368, 373 (1982)(calling showup identifications “suggestive and

unnecessary.”) Our Supreme Court has further stated that, “such a procedure,

sometimes referred to as a ‘showup,’ may be ‘inherently suggestive’ because the

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

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whom they suspected might be the guilty parties.’” State v. Oliver, 302 N.C. 28, 45,

274 S.E.2d 183, 194 (1981)(citation omitted). “When the pre-trial investigatory

identification procedures have created a likelihood of irreparable misidentification,

neither the pre-trial procedures nor an in-court identification is admissible.” Id.

(citation omitted).

Discussion

The showup identification in this case was impermissibly suggestive. Perdue,

still in an emotional state from encountering the perpetrator in his home, was told that

he was being taken to identify a subject that the police had captured in his

neighborhood. When Perdue arrived at the scene, Harvell was handcuffed and sitting

in the back of a police car. He was surrounded by officers. Perdue was never shown

any other men fitting the description he gave to police, and he never picked Harvell

out of a line-up. Furthermore, there were no exigent circumstances that made the

showup identification necessary. Cf. Stovall, supra (witness had been stabbed 11

times, could not leave the hospital, and no one knew how long she would live.)

Perdue’s identification of Harvell was unreliable. He had never seen the

perpetrator before, and he only had the perpetrator in his vision for about one

minute. When Perdue initially saw the perpetrator in his house, he could not see

the man’s right side. After that, both men were running and Perdue was firing his

gun repeatedly. Perdue never got within 20 feet of the perpetrator and never got a

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close-up view of his face. Because Perdue’s opportunity to view the perpetrator

was so limited, the trial court’s denial of the motion to suppress necessarily hung

on its finding that Perdue had a “heightened” and “highly focused” degree of

attention during the incident. However, there is no competent evidence to support

the court’s finding of fact that Perdue’s state of being “excited” increased his

ability to make a reliable identification. Rather, the evidence indicated that Perdue

was “scared” and under stress. Perdue stated that he felt like he was back in a

combat zone in Iraq as he fired his weapon at the unarmed perpetrator while

running up the street of his subdivision in the middle of the afternoon. This

evidence indicates that Perdue’s judgment was impaired by the situation, and that

his attention was focused on firing his weapon rather than on memorizing the

details of the perpetrator’s appearance.

The State produced no expert testimony that feeling like you are in a

“combat zone” leads to a heightened degree of attention. To the contrary, studies

have shown that high levels of stress decrease a witness’s ability to identify a

perpetrator. In a lengthy decision calling for a new jury instruction on eyewitness

identification, the New Jersey Supreme Court, relying on “more than 200 scientific

articles,” found that:

Even under the best viewing conditions, high levels of stress can diminish an eyewitness’ ability to recall and make an accurate identification. The Special Master found that “while moderate levels of stress improve cognitive processing and

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might improve accuracy, an eyewitness under high stress is less likely to make a reliable identification of the perpetrator.” The State agrees that high levels of stress are more likely than low levels to impair an identification.

Scientific research affirms that conclusion. A meta-analysis of sixty-three studies showed “considerable support for the hypothesis that high levels of stress negatively impact both accuracy of eyewitness identification as well as accuracy of recall of crime-related details.”

State v. Henderson, 208 N.J. 208, 261, 27 A.3d 872, 904 (2011)(citation omitted).

Perdue also got a key indicator of identification wrong. Perdue initially told

police that the perpetrator was tall, whereas Harvell is only 5’7” (about 5 inches

shorter than Perdue). In State v. Pinchback, 140 N.C. App. 512, 537 S.E.2d 222

(2000), this Court found that the unreliability of the identification, coupled with the

suggestiveness of the showup procedure, made it a substantial likelihood that a

misidentification occurred. Among the facts rendering the identification

unreliable was that the witness described the perpetrator as approximately 5’9” tall,

weighing 160 pounds, but the defendant was 6’1” tall, weighing approximately 230

pounds. The Court found that although the defendant fit the general description of

a black male with short hair, wearing black clothing, the discrepancy in the height

and weight rendered the identification unreliable. Id. at 520, 537 S.E.2d at 227.

Although Perdue’s confidence in his identification was high, research

indicates that witness confidence is not determinative of reliability. As the Court

in Henderson noted, “lab studies have shown that eyewitness confidence can be

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influenced by factors unrelated to a witness' actual memory of a relevant event.

[…] Indeed, this Court has already acknowledged that accuracy and confidence

‘may not be related to one another at all.’” 208 N.J. at 236, 27 A.3d at 889.

Moreover, “DNA exoneration cases buttress the lab results. Almost all of the

eyewitnesses in those cases testified at trial that they were positive they had

identified the right person.” Id.

The trial court’s denial of the motion to suppress and admission of the

identification violated Harvell’s constitutional rights, and the State cannot prove

the error was harmless beyond a reasonable doubt. The State’s case rested entirely

on Perdue’s identification of Harvell, to the point that the prosecutor indicated that

the court’s ruling on the motion to suppress was “dispositive.” There was no other

evidence implicating Harvell. No physical evidence linked him to the crime, and

he was never tied to the perpetrator’s vehicle. The trial court’s error in admitting

the identification was fundamental, as the jury would have been unable to convict

Harvell without it. Harvell is entitled to a new trial without the tainted

identification evidence.

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II. THE TRIAL COURT ERRED IN GIVING FLIGHT INSTRUCTION OVER THE DEFENSE’S OBJECTION.

The trial court erred in instructing the jury regarding flight over the

objection of defense counsel where Perdue pursued the perpetrator out of his house

and up the street firing his weapon. Moreover, there was no evidence that Harvell

made an effort to avoid apprehension.

Standard of Review

Defense counsel objected to the flight instruction, thereby preserving the

issue for review. Whether a jury instruction on flight is supported by the evidence

is an issue of law that is reviewed de novo on appeal. See State v. Holland, 161

N.C. App. 326, 330, 588 S.E.2d 32, 36 (2003). When reviewing an issue de novo,

the Court considers the matter anew and may freely substitute its own judgment for

that of the trial court. N.C. Dep’t of Envtl. & Natural Res. v. Carroll, 358 N.C.

649, 660, 599 S.E.2d 888, 895 (2004).

Legal Principles

“A trial judge should never give instructions to a jury which are not based

upon a set of facts presented by some reasonable view of the evidence. When such

instructions are prejudicial to the accused he [is] entitled to a new trial.” State v.

Lampkins, 283 N.C. 520, 523, 196 S.E.2d 697, 699 (1973). Accordingly, it is

reversible error for the trial court to instruct the jury on flight as evidence of guilt

when the evidence fails to show that the defendant's behavior showed a

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consciousness of guilt of the crime charged. State v. Lee, 287 N.C. 536, 215

S.E.2d 146 (1975).

The relevant inquiry in determining whether an instruction on flight is

warranted is “whether there is evidence that defendant left the scene of the [crime]

and took steps to avoid apprehension.” State v. Levan, 326 N.C. 155, 165, 388

S.E.2d 429, 434 (1990). “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. Thompson, 328

N.C. 477, 490, 402 S.E.2d 386, 392 (1991) (citation omitted).

When the trial court’s instructions are not supported by the evidence, this

Court must determine whether “there is a reasonable possibility that, had the error

in question not been committed, a different result would have been reached at the

trial out of which the appeal arises.” N.C.G.S. § 15A-1443(a).

Discussion

Here, the perpetrator ran out the back door of Perdue’s house after Perdue

pulled his firearm. Once outside, Perdue began firing at the perpetrator and

continued to fire as he chased him up the street. Perdue told police that if he saw

the perpetrator, he would “blow his head off.” Certainly, the law does not require

someone accused of a crime to stay at the scene if it means he may be shot and

possibly killed.

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Furthermore, merely leaving the scene of a crime is not, in itself, sufficient

to warrant an instruction on flight. There must be some evidence of an effort to

avoid apprehension. Here, Officer Roberts testified that he saw Harvell walking,

not running, near Perdue’s neighborhood. Roberts testified that Harvell made no

attempt to run or hide even after seeing Roberts’ marked police vehicle. Harvell’s

actions in walking down the road do not amount to an attempt to avoid

apprehension.

Cases where a flight instruction has been approved involve circumstances

greater than just leaving the scene of the crime, such as where the suspect failed to

request medical assistance for the victim or led police on a high speed chase. In

State v. Lloyd, 354 N.C. 76, 552 S.E.2d 596 (2001), the defendant was charged

with killing his girlfriend. The evidence showed that the “defendant hurriedly left

the scene of the murder without providing medical assistance to the victim.” Id. at

119, 552 S.E.2d at 626. Numerous witnesses testified that the defendant ran from

the murder scene to his car and sped off squealing his tires. The defendant was

seen driving though a stop sign and swerving on both sides of the road. The

defendant was later spotted, “going around two lanes of traffic on the wrong side

of the street, and through an intersection,” nearly hitting another driver. After

leaving the scene, the defendant went to confront his love rival and then drove to

several convenience stores before turning himself in. The Court found the flight

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instruction proper, stating “[t]he evidence of defendant's behavior in the aftermath

of the shooting establishes that he did more than merely leave the scene of the

crime and is sufficient to support a finding of consciousness of guilt, as set out in

the instruction.” Id. at 120, 552 S.E.2d at 626. 

In State v. King, 343 N.C. 29, 468 S.E.2d 232 (1996), our Supreme Court

found that the evidence supported a flight instruction where the evidence showed

that the defendant led police on a high speed chase at speeds of over 100 mph,

before crashing his car and fleeing into the woods. The defendant was

apprehended four months later. On cross-examination, the defendant admitted that

he “fled from Durham to New York and stayed ‘a good week’ in order to hide his

9-millimeter handgun.” Id. at 37-39, 468 S.E.2d at 238-239.

None of these extraordinary circumstances was present in the instant case.

The perpetrator ran from Perdue because he pulled a gun and started shooting at

him. This was a natural reaction to the situation rather that a calculated effort to

avoid apprehension. Even assuming he were the perpetrator, which he denies,

Harvell made no effort to avoid apprehension by the police. Accordingly, the

flight instruction was not based on a reasonable view of the evidence.

The trial court’s error in instructing the jury on flight was prejudicial to

Harvell. The flight instruction permitted the jury to consider the fact that the

perpetrator ran away to avoid being shot as evidence of consciousness of guilt,

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while the actual evidence of guilt was meager. There was no physical evidence

tying Harvell to the crime or to the perpetrator’s car, which was left in Perdue’s

driveway after the incident. The only evidence against Harvell was Perdue’s

identification. As discussed above, this evidence was unreliable due to Perdue’s

highly stressed state of mind, the brief nature of the encounter, and the fact that

Perdue was firing his weapon while both he and the perpetrator were running. In

State v. Lee, supra, our Supreme Court held that the flight instruction was

unsupported by the evidence. The Court concluded that the improper instruction

was prejudicial to the defendant’s case, requiring a new trial, because the evidence

of identification was arguably inconsistent. 287 N.C. at 541, 214 S.E.2d at

149(“Evidence of flight is not only competent but ‘often considered material . . .

where there is a dispute or doubt as to the identity as to the perpetrator of the

crime.’ (citation omitted)”)

Where the court’s flight instruction was not supported by the evidence and

prejudiced the defense, Harvell is entitled to a new trial.

III. 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.

The trial court violated statutory mandate when it responded to a jury

question about the terms “taking” and “carrying away” in connection with the

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larceny charge by physically demonstrating the difference with a coffee cup. The

court disregarded the requirements of N.C.G.S. § 15A-1234, by failing to inform

the parties of the instruction the court intended to give and by not affording them

an opportunity to be heard. Harvell was prejudiced by the trial court’s error as the

court’s impromptu demonstration improperly assisted the State in proving the

elements of its case.

Standard of Review

The trial court’s violation of a statutory mandate is automatically preserved

for appeal and is reviewed de novo. State v. Ashe, 314 N.C. 28, 331 S.E.2d 652

(1985). Under the de novo standard, the reviewing court considers the matter anew

and freely substitutes its own judgment for that of the lower court. Carroll, supra,

358 N.C. at 660, 599 S.E.2d at 895. A trial court errs under N.C.G.S. §15A-1234,

when “the record does not indicate that he informed the parties of the additional

instructions he intended to give or gave them an opportunity to be heard.” State v.

Mason, 317 N.C. 283, 291, 345 S.E.2d 195, 200 (1986).

Legal Principles

N.C.G.S. § 15A-1234 provides, in pertinent part, that:

(a) After the jury retires for deliberation, the judge may give appropriate additional instructions to: (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

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law which should have been covered in the original instructions.

[…]

(c) Before 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.

(emphasis added)

Discussion

After receiving the note from the jury asking for clarification regarding the

terms “taking” and “carrying away,” the trial court informed the parties that it was

“going to tell them the definition of taking is to lay hold of something with one's

hands.” The court did not tell the parties that it intended to use a coffee cup to

demonstrate the difference between the terms. Moreover, after the demonstration,

the trial court repeated the elements of felonious larceny but omitted the language

that the State had the burden of proving all of the elements beyond a reasonable

doubt. In addition, the court did not give the parties an opportunity to be heard

before recalling the jury and giving them the additional instruction. Section 15A-

1234(c) requires that both of these conditions be met.

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Harvell was prejudiced by the trial court’s failure to adhere to the mandates

of Section 15A-1234. The State has the burden of proving every element of an

offense beyond a reasonable doubt. State v. Smith, 170 N.C. App. 461, 470, 613

S.E.2d 304, 312 (2005). By physically demonstrating elements of the larceny

charge for the jury, and by repeating the elements without admonition that the

State had the burden of proving all of the elements “beyond a reasonable doubt,”

the trial court improperly aided the State in proving its case. The jury was clearly

conflicted over whether the State had met its burden of proof regarding the larceny

charge, as it sent in two separate inquires about how many and which elements it

was required to find. There is a reasonable possibility that but for the trial court’s

improper instructions, the jury would have found Harvell not guilty of felonious

larceny. Accordingly, he is entitled to a new trial.

CONCLUSION

For the reasons set forth above, Defendant Montice Harvell requests the

Court to order a new trial.

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Respectfully submitted, this the 7th day of April, 2014.

/s/ Sharon L. Smith Sharon L. SmithAttorney at LawPO Box 99815Raleigh, NC 27624Phone: 919-828-3966Fax: 919-828-3927slsmith@ulslaw.com

ATTORNEY FOR DEFENDANT-APPELLANT

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CERTIFICATE THAT BRIEF IS WITHIN WORD LIMIT

I certify that the foregoing Defendant-Appellant’s Brief does not exceed the word limitation of 8,750 words imposed by the North Carolina Rules of Appellate Procedure, Rule 28(j((B).

/s/ Sharon L. Smith Attorney for Defendant-Appellant

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CERTIFICATE OF FILING AND SERVICE

I hereby certify that a copy of Defendant-Appellant’s Brief has been filed with the North Carolina Court of Appeals by electronic filing.

I also certify that a copy of Defendant-Appellant’s Brief has been duly served on counsel for the State, Assistant Attorney General Josephine Tetteh, via electronic mail at jtetteh@ncdoj.gov.

This the 7th day of April, 2014.

/s/ Sharon L. Smith Sharon L. SmithAttorney for Defendant-Appellant