State v. Simpson

An unpublished opinion of the North Carolina Court of Appeals does not constitute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).