An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-776 NORTH CAROLINA COURT OF APPEALS
Filed: 20 May 2014
STATE OF NORTH CAROLINA
v. Guilford County No. 10 CRS 72489 WINFRED SCOTT SIMPSON, Defendant.
Appeal by defendant from judgment entered 3 January 2013 by
Judge Edgar B. Gregory in Guilford County Superior Court. Heard
in the Court of Appeals 11 December 2013.
Attorney General Roy Cooper, by Assistant Attorney General Nicholaos G. Vlahos, for the State.
Michael E. Casterline for defendant-appellant.
GEER, Judge.
Defendant appeals from his conviction of first degree
murder of his wife Retha Simpson. On appeal, defendant
primarily contends that the trial court erred in denying his
motion to dismiss the charge of first degree murder because
there was insufficient evidence that defendant acted with
premeditation and deliberation. Our review of the record,
however, indicates that there was substantial evidence from -2- which a reasonable juror could conclude that defendant acted
with premeditation and deliberation in killing his wife.
Because we find his additional arguments unpersuasive, we find
that defendant received a trial free of prejudicial error.
Facts
The State's evidence tended to show the following facts.
Beginning in late 2009, defendant and his wife Retha were having
marital problems. In October 2009, Retha discovered that
defendant had been having an affair. Although she wanted to
leave defendant, she was a full-time student and financially
dependent on defendant who worked at UPS. She, therefore,
decided to "suffer through" her relationship with him. As a
solution to their marital problems, defendant and Retha joined a
swinger's club in Charlotte, North Carolina. Retha bartended at
the club while defendant "participated in events" at the club.
On 19 March 2010, Retha had plans with her best friend,
Lori Hudson ("Ms. Hudson"), to meet for lunch and a movie.
Around noon that Friday, Ms. Hudson called Retha to confirm
their plans. Retha told Ms. Hudson that she had to cancel
because she and defendant had been arguing throughout the night.
Retha also told Ms. Hudson that she wanted to remove herself
from defendant's cell phone plan so that defendant would not
have access to her information. Ms. Hudson could hear defendant -3- in the background and was not able to get any more details about
their argument. When Ms. Hudson called Retha later that
afternoon, her cell phone was disconnected.
The following day, Ms. Hudson called defendant's house to
check in on Retha. Defendant answered and told Ms. Hudson that
Retha had "left the village." He said that he had Retha's cell
phone service terminated and he did not know how to reach her.
Defendant's demeanor was "pleasant," and he "sounded happy"
during the conversation.
Throughout the weekend, Ms. Hudson was unable to get in
touch with Retha. Ms. Hudson reached out to mutual friends on
Facebook, but none of them had seen or heard from Retha. On
Monday, 22 March 2010, Ms. Hudson spoke to defendant again.
Defendant clarified that when he said that Retha had "left the
village," he meant that she had left him for another man. Ms.
Hudson knew that something was not right because defendant also
told her that Retha had not taken her community college books,
her car was still in the driveway, and no one knew anything
about the other man. Ms. Hudson told defendant that if he did
not report Retha missing, she would.
The following morning, defendant reported Retha missing.
He told Deputy Carl T. Dill of the Guilford County Sheriff's
Office that Retha was bipolar and had recently changed her -4- medication, so she had been experiencing mood swings. When
defendant came home from work on 18 March 2010, he found Retha
talking to another man on the internet. After confronting her,
defendant learned that she had been having an affair for the
previous six months. The couple argued throughout the night,
and when defendant left for work around 3:00 p.m. the following
day, Retha was still in bed crying over their argument. When he
came home from work on 19 March 2010, Retha's car was still in
the driveway, but Retha was not home and her clothes,
medication, and purse were missing.
Defendant told Deputy Dill that he did not know how to get
in touch with Retha because he had her cell phone service
disconnected. Defendant claimed that he did not have any access
to Retha's bank account or credit card information, and he did
not know the name of the man with whom Retha had been having an
affair. Deputy Dill called all of Retha's friends but no one
had heard from her.
On 24 March 2010, the Greensboro Police Department
responded to a call that someone had discovered charred human
remains in a wooded area near Thurston Avenue in Greensboro,
North Carolina. Police found what appeared to be two human legs
wrapped in black plastic and bound in wire. Other body parts
were identified as officers collected the pieces and put them in -5- four body bags. No shoes or clothing were found with the
remains, and officers noticed an oily film on many of the body
parts. About three feet and 12 feet away from the remains was a
black oily ring of residue measuring about 22 inches in
diameter. There were also tire impressions in the muddy
portions of the roadway at the scene.
The detective assigned to Retha's missing person case,
Detective Robert Cheek of the Guilford County Sheriff's Office,
received a call that a body had been found, and he determined
that the remains fit the description of Retha. Detective Cheek
and Detective George Moore went to defendant's residence to talk
to him. When they arrived at the front door, they heard the
sound of a vacuum cleaner inside. They had to knock two or
three times before defendant turned off the vacuum cleaner and
answered the door. Defendant answered the door out of breath
and wearing only a pair of jean shorts with red stains on them.
While they spoke with defendant, Detective Moore noticed a
brand-new, empty box of carpet shampoo on the hearth of the
fireplace in the living room. He also saw through a window that
a 55 gallon metal barrel was on the back porch.
Defendant allowed the detectives to look around his
residence. Detective Moore found a can of lighter fluid in the
kitchen. In the master bathroom, Detective Moore noticed -6- several red stains on the bathtub, wall, blinds, and furniture.
The closet of the master bedroom contained very few women's
clothes and many empty hangers. On the back porch, there was a
carpet shampooer, a hand truck, a hose, a broom, a shovel, and a
55 gallon metal barrel. During a more thorough search pursuant
to a warrant, Detective Moore found Retha's purse and UPS boxes
filled with her clothing in the attic. The purse contained
Retha's driver's license and other personal belongings.
DNA testing of samples of the red stains from the master
bedroom and bathroom matched Retha's DNA profile, and the
charred remains were identified as Retha's remains. Officers
also received information from defendant's neighbor that a fire
had been burning in the barrel on defendant's deck beginning 19
March 2010 and lasting two consecutive days.
Defendant was indicted for first degree murder. At trial,
defendant testified in his own defense that Retha had a history
of mental health issues and had been diagnosed with borderline
personality disorder and bipolar disorder. During their
relationship, she was both physically and verbally abusive
towards defendant. She told defendant that she could hurt him
or kill him, and get away with it because she was mentally ill.
At various times during their marriage, she threated to poison, -7- shoot, castrate, and attack defendant while he slept. She would
belittle his masculinity, sometimes in front of their friends.
Defendant and Retha would sometimes playfully rough-house,
but occasionally Retha would cross the line from playfulness to
hurting defendant. She outweighed defendant by 100 pounds and
would use her weight to push him onto the ground or up against a
wall, dig her nails into him, or twist his arm or leg. Once, at
Retha's request, defendant submitted to being tied face-down on
their bed and blindfolded. Retha then anally assaulted
defendant with a strap-on sexual device. She refused to stop
when he asked her to, and instead taunted him about his
manliness. The assault injured defendant so badly that he
required surgery to repair the damage.
On 19 March 2010, Retha was angry with defendant after he
had used her laptop without her permission to check on her
online activity. Retha began yelling in defendant's face and
pushing him, trying to provoke defendant. Defendant tried to
defuse the situation by locking himself in the upstairs bathroom
to shower and get ready for his shift at UPS. However, Retha
picked the lock and burst into the bathroom. She yanked back
the shower curtain and shoved defendant, causing him to slip and
fall in the bathtub. Defendant was frightened and threatened to -8- call the police. Retha grabbed a bath brush and started beating
defendant on the head and shoulders.
When defendant realized that his head was bleeding, he
panicked because he believed that she was trying to kill him.
He grabbed the brush from her, threw it down, and tried to run
out of the bathroom. Retha wrapped her arms around his legs
causing him to fall to the floor and smash his foot through the
bathroom vanity door. Retha then started hitting him with her
fists. Defendant grabbed her arm and pulled her down onto her
hands and knees. She kept trying to hit him, so he decided to
try to immobilize her with a sleeper hold. He put his right arm
under her head, grabbed his right wrist with his left hand, and
applied pressure to the sides of her neck until she went limp.
He then got up and ran into the bedroom.
When Retha did not get up after a few seconds, defendant
went back into the bathroom to check on her. He rolled her over
to find that her face was blue and she was not breathing. He
administered CPR, but was unable to revive her.
Afterwards, defendant was scared, confused, and in a state
of shock. He took a number of Retha's anti-anxiety and anti-
psychosis pills to calm himself down. He then went to work.
Because he did not immediately report Retha's death, he decided
that he would have to hide the fact that she had died, even -9- though it was accidental. Her body was too large to move from
the bathroom, so the following day, he covered her body with
plastic, removed her limbs with a reciprocating saw, and placed
the pieces of her body into a metal barrel. He moved the barrel
to the back yard, lit a fire and burned the contents for three
days. On the night of Tuesday, 23 March 2010, he put the barrel
in the back of his pickup truck, drove down a dirt road and
dumped the contents into the woods.
After his arrest, defendant was examined by a forensic
psychologist and a forensic psychiatrist. They each testified
in his defense at trial. The psychologist diagnosed defendant
with clinical symptoms of major depression recurrent without
psychosis, unspecified anxiety disorder, and features of
Asperger's syndrome. According to the psychologist, defendant
was highly anxious, prone to depression of suicidal proportions,
with many negative feelings about himself, dependent, self-
effacing, introverted, shy, and withdrawn. The psychologist did
not see any evidence that defendant was a violent person or
prone to acting out. Instead, he determined that defendant
dealt with his aggressive feelings and negative emotions by
turning them inward on himself. He felt defendant had been
truthful in reporting the events of Retha's death and that the
details were consistent with the evidence presented at trial. -10- The psychiatrist diagnosed defendant with clinical symptoms
of major depressive disorder and found that he had been
physically and sexually abused. She attributed defendant's
behavior after Retha's death to his feelings of guilt and shame
that emotionally overwhelmed defendant and caused him to have
impaired judgment.
Defendant moved to dismiss the charge of first degree
murder at the close of the State's evidence and again at the
close of all evidence. The trial court denied both motions, and
the jury returned a verdict of guilty of first degree murder.
The trial court sentenced defendant to life imprisonment without
parole. Defendant timely appealed to this Court.
I
Defendant first argues that the trial court erred in
excluding evidence of Retha's criminal conviction for assaulting
a man in a previous relationship. Out of the presence of the
jury, the defendant tendered to the trial court a copy of
Retha's criminal history, which included a conviction for simple
assault in 1992. Defendant argued that this evidence was
relevant to defendant's state of mind at the time of Retha's
death and was offered to support the defense's theory that
defendant acted in self-defense. -11- Implicitly accepting that the evidence was relevant to
defendant's theory of self-defense, the judge nevertheless
ruled:
[Y]ou may ask [defendant] what [Retha] said about [the assault] but I'm not going to allow any evidence, any -- any documentary evidence about it. Certainly wouldn't allow this kind of evidence in about a defendant. And I understand the reasons but I rule under 403 that under the balancing test that the probative value is substantially outweighed by the considerations of time and not needing to go there.
Subsequently, the trial judge allowed admission of defendant's
testimony, over the State's objection, that Retha "used to tell
me that she used to beat the hell out of [the father of her
illegitimate child]" and that she "used her assault on the
father of her son as kind of a threat" against the defendant.
Rule 403 of the Rules of Evidence provides for the
exclusion of otherwise admissible evidence "if its probative
value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or
by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence." We review a trial court's
decision to exclude evidence under Rule 403 for abuse of
discretion. State v. Whaley, 362 N.C. 156, 160, 655 S.E.2d 388,
390 (2008). "An abuse of discretion occurs when a trial judge's
ruling is 'manifestly unsupported by reason.'" State v. -12- Summers, 177 N.C. App. 691, 697, 629 S.E.2d 902, 907 (2006)
(quoting State v. Riddick, 315 N.C. 749, 756, 340 S.E.2d 55, 59
(1986)).
Here, the trial judge applied the Rule 403 balancing test
and concluded that the probative value of the 1992 conviction
for civil assault was substantially outweighed by considerations
of time. Given that the trial court admitted defendant's
testimony regarding what Retha had told him about assaulting her
prior boyfriend and given that defendant's knowledge of the
prior assault was the only information relevant to the issues at
trial, we hold that the trial court did not abuse its discretion
in excluding the victim's 18-year-old conviction. See State v.
Jacobs, 363 N.C. 815, 822, 689 S.E.2d 859, 864 (2010) (holding
copies of victim's prior convictions admissible when defendant
offered evidence to show that defendant knew of these "certain
violent acts by the victim").
II
Next, defendant argues that the trial court erred in
admitting expert testimony from Dr. Simmons that the cause of
death was "undetermined homicidal violence." Defendant asserts
that the expert's conclusion "did not derive from his
examination of the victim or from scientific knowledge; rather,
it was derived from the underlying facts by the sort of -13- reasoning process entirely within the capability of an average
juror." Further, he argues that this conclusion "amounted to an
opinion that the death was not accidental" and "an expert
opinion as to [defendant's] state of mind."
Pursuant to Rule 702(a) of the Rules of Evidence, "[i]f
scientific, technical or other specialized knowledge will assist
the trier of fact to understand the evidence or to determine a
fact in issue, a witness qualified as an expert by knowledge,
skill, experience, training, or education, may testify thereto
in the form of an opinion . . . ." An expert opinion is
admissible if the witness is in a better position than the trier
of fact to have an opinion. State v. Wilkerson, 295 N.C. 559,
568-69, 247 S.E.2d 905, 911 (1978).
In State v. Annadale, 329 N.C. 557, 573, 406 S.E.2d 837,
847 (1991), our Supreme Court rejected the defendant's argument
that the State's forensic pathologist was in no better position
than the jury to render an opinion as to the victim's cause of
death. In Annadale, the remains of the victim's body included
only the skull and various bones such as vertebrae, backbones,
rib bones, a portion of the sacrum, and hip bones. Id. at 565,
406 S.E.2d at 842. Despite the lack of physical evidence
indicating cause of death, the forensic pathologist listed the
cause of death as "'incision of the throat,'" which was based -14- upon information received from law enforcement. Id. at 573, 406
S.E.2d at 847. He further testified, among other things, that
the victim's death was the result of violence or injury trauma
rather than natural disease. Id., 406 S.E.2d at 846.
In finding that the trial court did not err in admitting
the forensic pathologist's opinion, our Supreme Court held:
Dr. Butts serves as the State's Chief Medical Examiner. He was accepted as an expert in forensic pathology and was allowed to testify as an expert witness. As a forensic pathologist, Dr. Butts was well qualified to provide testimony which was within his area of expertise and helpful to the jurors. Dr. Butts was subject to thorough cross-examination by defendant concerning his testimony, and any apparent discrepancies therein. The trial judge did not err in permitting Dr. Butts to give his opinion as to the cause of the victim's death.
Id., 406 S.E.2d at 847.
Likewise, in this case, Dr. Simmons was accepted as an
expert in forensic pathology, he thoroughly examined Retha's
remains, received additional information from law enforcement,
and, based on his knowledge, skill, experience, training, and
education as a forensic pathologist, determined that Retha's
cause of death was "undetermined homicidal violence." Dr.
Simmons was also subject to thorough cross-examination by
defense counsel concerning his testimony and any apparent
discrepancies in that testimony. -15- Defendant's argument that the expert's opinion as to the
cause of death constituted a legal conclusion was expressly
rejected by this Court in State v. Parker, 354 N.C. 268, 290,
553 S.E.2d 885, 900 (2001), which held that a medical examiner's
conclusion that the victim's death was a "homicide" was
admissible:
Dr. Thompson used the word "homicide" to explain the factual groundwork of his function as a medical examiner. Dr. Thompson did not use the word as a legal term of art. He explained how he determined the death was a homicide instead of death by natural causes, suicide, or accident. Dr. Thompson's testimony conveyed a proper opinion for an expert in forensic pathology, and the trial court properly allowed it.
See also State v. Trogdon, 216 N.C. App. 15, 21-22, 715 S.E.2d
635, 639-40 (2011) (applying Parker and holding expert testimony
that death was "homicide" properly admitted where "homicide" not
used "as a legal term of art, but rather as a means of
describing how the[] injuries came to be inflicted -- the
'manner of death' was a homicide and not through accidental
means").
In this case, similarly, Dr. Simmons did not use "homicide"
as a conclusion regarding defendant's state of mind when he
killed Retha, but rather as a conclusion regarding the manner in
which she died -- that it was not a natural death. Dr. Simmons
explained that the term "undetermined homicidal violence" is "a -16- convention from our office and the chief medical examiner's
office" that is used "in cases where there is not enough
information to suggest any other cause or manner of death than
homicide, but there's also not necessarily enough information to
figure out specifically why the person died based on the
evidence available at the time of autopsy."
Review of similar cases in which an expert testified
regarding a victim's cause of death suggests that "homicidal
violence" is an appropriate and accepted cause of death among
forensic pathologists. See State v. Gregory, 340 N.C. 365, 381,
459 S.E.2d 638, 647 (1995) (noting victims' bodies were in an
advanced state of decomposition and autopsy revealed that one
victim died from "undetermined homicidal violence"); State v.
Patel, 217 N.C. App. 50, 56, 719 S.E.2d 101, 106 (2011) (noting
expert in forensic pathology testified that victim's cause of
death was "'homicidal violence of undetermined type'"), disc.
review denied, 365 N.C. 551, 720 S.E.2d 395 (2012); State v.
Johnson, 196 N.C. App. 330, 332, 674 S.E.2d 727, 729 (2009)
(noting expert forensic pathologist testified that victim died
of "'unspecified homicidal violence'" but most likely
asphyxiation). Accordingly, we hold that the trial court did
not err in admitting Dr. Simmons' testimony.
III -17- Finally, defendant argues that the trial court erred in
denying his motion to dismiss the charge of first degree murder.
"'Upon defendant's motion for dismissal, the question for the
Court is whether there is substantial evidence (1) of each
essential element of the offense charged, or of a lesser offense
included therein, and (2) of defendant's being the perpetrator
of such offense. If so, the motion is properly denied.'" State
v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (2000)
(quoting State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918
(1993)). "Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion." State v. Smith, 300 N.C. 71, 78–79, 265 S.E.2d
164, 169 (1980). "In making its determination, the trial court
must consider all evidence admitted, whether competent or
incompetent, in the light most favorable to the State, giving
the State the benefit of every reasonable inference and
resolving any contradictions in its favor." State v. Rose, 339
N.C. 172, 192, 451 S.E.2d 211, 223 (1994). "This Court reviews
the trial court's denial of a motion to dismiss de novo." State
v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007).
Defendant contends that there was insufficient evidence
that defendant intentionally killed Retha with premeditation and
deliberation. "'Premeditation means that the defendant thought -18- about the killing for some length of time, however short, before
he killed.'" State v. Bass, 190 N.C. App. 339, 342, 660 S.E.2d
123, 126 (2008) (quoting State v. Fields, 315 N.C. 191, 200, 337
S.E.2d 518, 524 (1985)). "'Deliberation means that the intent
to kill was formulated in a cool state of blood, one not under
the influence of a violent passion suddenly aroused by some
lawful or just cause or legal provocation.'" Id. at 342-43, 660
S.E.2d at 126 (quoting Fields, 315 N.C. at 200, 337 S.E.2d at
524).
Defendant argues that the State's evidence regarding
whether the killing was premeditated was insufficient because it
was circumstantial and "evidence of [defendant's] conduct after
Retha's death is insufficient to prove his state of mind prior
to her death." We disagree.
Our Supreme Court has explained that "[p]remeditation and
deliberation generally must be established by circumstantial
evidence, because both are processes of the mind not ordinarily
susceptible to proof by direct evidence." State v. Rose, 335
N.C. 301, 318, 439 S.E.2d 518, 527 (1994), overruled in part on
other grounds by State v. Buchanan, 353 N.C. 332, 543 S.E.2d 823
(2001).
The following circumstances are relevant to the existence
of premeditation and deliberation: -19- "(1) want of provocation on the part of the deceased; (2) the conduct and statements of the defendant before and after the killing; (3) threats and declarations of the defendant before and during the course of the occurrence giving rise to the death of the deceased; (4) ill will or previous difficulty between the parties; (5) the dealing of lethal blows after the deceased has been felled and rendered helpless; and (6) evidence that the killing was done in a brutal manner."
State v. Williams, 144 N.C. App. 526, 530, 548 S.E.2d 802, 805
(2001) (quoting State v. Hamlet, 312 N.C. 162, 170, 321 S.E.2d
837, 843 (1984)), aff'd per curiam, 355 N.C. 272, 559 S.E.2d 787
(2002).
The evidence shows that prior to the killing, defendant and
Retha were having significant marital problems. Defendant had
committed adultery six months prior. The night before Retha's
death, they got into a fight after defendant used Retha's
computer because he suspected her of cheating. The following
day, Retha cancelled plans with her best friend because she and
defendant continued to fight, and Retha told her best friend
that she wanted to remove herself from defendant's cell phone
plan so that he would not have access to her information.
After Retha was killed, defendant did not immediately
notify the authorities. Instead, he took measures to try to
cover up her death and hide the body. He sawed off her limbs,
placed her body parts in a barrel, burned her body for three -20- days, and then dumped her remains in the woods. Our Supreme
Court has held that burning a victim's body after death is
"evidence from which a jury could infer premeditation and
deliberation." Rose, 335 N.C. at 319, 439 S.E.2d at 527. See
also State v. Battle, 322 N.C. 69, 73, 366 S.E.2d 454, 457
(1988) (concluding that defendant's demand that two witnesses
help him dispose of victim's body by burning it was evidence of
premeditation and deliberation); Patel, 217 N.C. App. at 62, 719
S.E.2d at 109 (holding "fact that [victim's] body was burned
after she was killed constitutes additional evidence of
premeditation and deliberation").
Additionally, defendant created a web of lies to cover up
what he had done. When Ms. Hudson called the house to check on
Retha the day after her death, defendant, with a "pleasant"
demeanor and sounding "happy," told Ms. Hudson that Retha had
"left the village." He also told Ms. Hudson that he had
cancelled Retha's cell phone service and did not know how to
reach her. He emailed the swinger's club in Charlotte to let
them know he and Retha were no longer together and that Retha
"won't be back" to the swinger's club. He hid Retha's clothes
and purse in the attic to make it look like she had left him and
attempted to clean the blood from the bathroom and bedroom.
Finally, he did not report Retha missing until three days after -21- her death, and he only did so then because Ms. Hudson threatened
to report Retha missing if defendant did not.
The evidence of defendant's and Retha's marital troubles
and argument immediately preceding her death, the mutilation,
burning, and disposal of Retha's body, and defendant's lying in
an attempt to cover up her death constitute substantial evidence
from which a reasonable jury could conclude that defendant
intentionally killed Retha with premeditation and deliberation.
Although defendant points to evidence in the record that
supports his contention that he did not intend to kill Retha and
that her death was the result of an accident after defendant
acted in self- defense, it was up to the jury to determine the
credibility and weight of the evidence presented. Defendant's
argument amounts to a request that this Court view the evidence
in the light most favorable to defendant, which is contrary to
our standard of review. Accordingly, the trial court did not
err in denying his motion to dismiss.
No error.
Judges BRYANT and CALABRIA concur.
Report per Rule 30(e).