State v. Scales

• Court: Court of Appeals of North Carolina
• Decided: July 1, 2014
• Docket: 13-1462
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-1462 NORTH CAROLINA COURT OF APPEALS

Filed: 1 July 2014

STATE OF NORTH CAROLINA

v. Guilford County No. 12 CRS 67263 JUSTIN DUPREE SCALES

Appeal by Defendant from Judgment entered 13 May 2013 by

Judge Ronald E. Spivey in Guilford County Superior Court. Heard

in the Court of Appeals 23 June 2014.

Attorney General Roy Cooper, by Special Deputy Attorney General Sandra Wallace-Smith, for the State.

Appellate Defender Staples Hughes, by Assistant Appellate Defender Kathleen M. Joyce, for Defendant.

STEPHENS, Judge.

Procedural History and Evidence

This case arises from the murder of Ashley Leshay Murphy, a

professional escort. Murphy’s body was discovered on 27 January

2012, and Defendant was indicted for her murder on 21 May 2012.

The matter came on for trial beginning 6 May 2013 in Guilford -2- County Superior Court. The evidence at trial tended to show the

following:

Defendant telephoned an escort service on the night of 22

January 2012 and arranged for an escort to come to an apartment

on Lolly Lane in Greensboro, North Carolina. Defendant shared

the apartment with his grandmother. The owner of the escort

service, Richard Webb, dispatched Murphy to the apartment, and

she arrived at approximately 1:34 a.m. At 1:41 a.m., Webb

received a text message from Murphy saying “that [Defendant]

didn’t have the money.” Two minutes later, at 1:43 a.m., Webb

telephoned Murphy, and she reported that Defendant was “walking

room to room, like he can’t find any money.” Webb told Murphy to

“[g]et out of there.” At 1:45 a.m., Defendant called Webb and

asked if Webb “could have [Murphy] call . . . back” because she

had stolen his Xbox video game console.

In fact, Defendant had bludgeoned Murphy to death in his

apartment with a metal table leg, continuing to beat her after

she had lost consciousness. He then placed her body in the trunk

of her red Chevrolet Cavalier with a bar of Dove soap and parked

the car in a public housing complex. Defendant threw Murphy’s

cell phone into the backyard of a neighbor, who found it and

turned it over to police on 26 January 2012. Police found -3- Murphy’s driver’s license and a wallet with her debit card and

electronic benefit transfer card in a storm drain one block

south of Defendant’s apartment.

On 26 January 2012, Anastasia Mack contacted the Greensboro

Police Department regarding “a dead body inside the trunk of [a]

red Cavalier” parked on Gatewood Avenue. Mack averred that her

best friend Tiffany Eubanks, Defendant’s romantic partner and

“baby mama,” showed her the body in the car earlier that week,

on Tuesday or Wednesday.1 Eubanks then drove with Mack to

Defendant’s apartment to pick up a cell phone. Inside the

apartment, Mack observed “a big . . . bleach spot, like

obviously somebody tried to clean something up” on the carpet.

She also noticed that a blue rug was missing from the living

room. When Mack asked Defendant “what had happened at the

apartment where the bleach spot was[,]” Defendant replied “that

it wasn’t who we thought it was, [but] that they got somebody.”

Mack testified that the phrase “got somebody” meant “[t]hat you

robbed them and possibly killed them.”

Police searched Defendant’s apartment on 26 and 27 January

2012 and found several stains on the carpet. Certain sections

were “much lighter” than others and had “obviously [been]

1 22 January 2012 was a Sunday, and 26 January 2012 was a Thursday. -4- cleaned.” Officers also photographed multi-directional blood

spatter on the walls and on a lamp shade in the living room.

They recovered pieces of a broken cell phone; bottles of

cleaner; and a 23 January 2012 receipt for bleach, all-purpose

cleaner, and a carpet cleaner. They also seized a metal table

leg from a bedroom closet. Blood swabbed from the table leg

matched Murphy’s deoxyribonucleic acid (“DNA”) profile. Teeth

found on Defendant’s living room floor also matched Murphy’s

DNA, and latent fingerprints recovered from the interior of the

red Cavalier were “identical” to known prints of Murphy.

Defendant was interviewed by members of the Greensboro

Police Department on 27 January 2012. A recording of the

interview was admitted into evidence and played for the jury.

After waiving his Miranda rights, Defendant confessed to killing

Murphy and disposing of her body. He stated that he had

intercourse with Murphy in his living room and that she had

drawn a knife when he refused to pay her. Defendant then grabbed

the metal table leg from behind the sofa and struck Murphy with

it five times. The second blow knocked her unconscious.

Defendant placed her body in the trunk of her car and parked it

where it was eventually discovered by police. He threw Murphy’s

cell phone over a fence at his apartment building and threw her -5- keys in the dumpster. He placed the table leg in his

grandmother’s bedroom closet behind some blankets. Defendant

gave Murphy’s knife to Eubanks and told her where he had taken

the body.

At trial, Officer W.C. Phoenix — the crime scene

investigator — testified, inter alia, that he found a trash can

in the kitchen containing receipts and a “hand-drawn map.” On

direct examination, Phoenix made the following statement

regarding the map:

. . . From the layout, this is a — it’s the way I would draw streets. With the angles of the streets, I would indicate that this would be Lolly Lane. (Indicated). This would be Ball Street. (Indicated). This would be Gatewood Avenue. (Indicated). And the rectangle down here would be a way that I would draw a depiction of a vehicle. (Indicated).

The State sought to admit the map into evidence, and Defendant

objected “to [Phoenix’s] characterization of what [the map]

portray[ed] . . . .” The court admitted the map and Phoenix’s

testimony because Defendant failed to object before Phoenix

testified. Following the receipt of evidence and deliberation,

the jury found Defendant guilty of first-degree murder based on

(1) malice, premeditation, and deliberation as well as (2)

felony murder. The trial court sentenced Defendant to life -6- imprisonment without the option of parole. Defendant gave notice

of appeal in open court.

Discussion

Counsel appointed to represent Defendant is unable to

identify any issue with sufficient merit to support a meaningful

argument for appellate relief and asks that this Court conduct

its own review of the record for possible prejudicial error.

Nonetheless, counsel offers the following possible arguments on

appeal:

First, counsel suggests that the trial court could have

committed plain error by declining to instruct the jury on

diminished capacity as a part of its felony murder instruction

“after including [diminished capacity] in the instruction on

first-degree murder . . . .” This suggestion is without merit.

Our Supreme Court held in State v. Roache that it was not plain

error for the trial court to decline to instruct the jury on

diminished capacity in the context of felony murder where, as

here, the trial court informed the jury that diminished capacity

applied to the underlying offense. 358 N.C. 243, 305–06, 595

S.E.2d 381, 421 (2004) (“With this instruction the jurors would -7- have understood that diminished capacity could be considered as

a defense for the felony murder of [the victim].”). As the trial

court in this case instructed the jury on the defense of

diminished capacity as it applies to first-degree murder, the

Roache rationale is applicable here. See id. Accordingly, the

trial court did not err, much less plainly err, in its jury

instructions.

Second, counsel suggests that the trial court could have

abused its discretion under Rule 403 by allowing Mack’s

testimony regarding her interpretation of Defendant’s statement

that he “got somebody.” We disagree. As the State notes in its

brief, Mack’s testimony is proper under Rule 701 because it was

“rationally based on her perception and helpful to a clear

understanding of her testimony.” Mack’s interpretation of

Defendant’s statement is rational and, without that

interpretation, her testimony regarding Defendant’s statement

would have been difficult, if not impossible, for the jury to

understand. See N.C.R. Evid. 701. Therefore, the trial court did

not abuse its discretion in admitting that testimony.

Third, counsel suggests that the trial court could have

committed plain error by allowing Phoenix’s lay testimony that

“[the map from the kitchen trash can] would be” how he would -8- draw a diagram of streets in Defendant’s neighborhood and “a

vehicle.” Again, we disagree. As the State notes in its brief,

this Court held in State v. Rick that a crime scene technician’s

lay testimony regarding the similarity between impressions in

the dirt and the cinder block and rock tied to the victim’s body

was admissible as helpful to the jury and rationally based on

the technician’s personal perception under Rule 701. 126 N.C.

App. 612, 618–19, 486 S.E.2d 449, 452–53 (1997); see also N.C.R.

Evid. 701. Given Phoenix’s role as the crime scene investigator

in this case, the Rick rationale is applicable here.

Accordingly, the trial court did not err, much less plainly err,

in admitting Phoenix’s testimony.

Counsel shows to the satisfaction of this Court that she

has complied with the requirements of Anders v. California, 386

U.S. 738, 18 L. Ed. 2d 493 (1967), and State v. Kinch, 314 N.C.

99, 331 S.E.2d 665 (1985), by advising Defendant of his right to

file written arguments with this Court and providing him with

the documents necessary to do so. Defendant has not filed any

written arguments on his own behalf, and a reasonable time has

expired. In accordance with Anders, we have fully examined the

record to determine whether any issues of arguable merit are

present and found none. The State’s evidence was sufficient to -9- establish Defendant’s guilt of first-degree murder based on

premeditation and deliberation and felony murder. See, e.g.,

State v. Franklin, 327 N.C. 162, 171, 393 S.E.2d 781, 787 (1990)

(“Among the circumstances which give rise to an inference of

premeditation and deliberation are the conduct and statements of

[the] defendant before and after the killing, attempts to

conceal the body, ill will between the parties, and evidence

that the killing was performed in a brutal and vicious manner.”)

(citation omitted). Therefore, we conclude this appeal is wholly

frivolous and find

NO ERROR.

Judges HUNTER, ROBERT C., and ERVIN concur.

Report per Rule 30(e).