An unpublished opinion of the North Carolina Court of Appeals does not constitute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