State v. Allen

Decision Date03 March 2006
Docket NumberNo. 115A04.,115A04.
Citation626 S.E.2d 271
PartiesSTATE of North Carolina v. Scott David ALLEN.
CourtNorth Carolina Supreme Court

Appeal as of right pursuant to N.C.G.S. § 7A-27(a) from a judgment imposing a sentence of death entered by Judge Anderson D. Cromer on 18 November 2003 in Superior Court, Montgomery County, upon a jury verdict finding defendant guilty of first-degree murder. On 6 December 2004, the Supreme Court allowed defendant's motion to bypass the Court of Appeals as to his appeal of an additional judgment. Heard in the Supreme Court 14 September 2005.

Roy Cooper, Attorney General, by Robert C. Montgomery and Daniel P. O'Brien, Assistant Attorneys General, for the State.

Staples S. Hughes, Appellate Defender, by Barbara S. Blackman, Assistant Appellate Defender, for defendant-appellant.

BRADY, Justice.

On 9 July 1999, defendant Scott David Allen, his girlfriend Vanessa Smith, and Christopher Gailey entered the Uwharrie National Forest on their way to a cabin located deep therein. While in the forest, defendant shot Christopher Gailey twice, once in the back and once in the knee, with a twelve-gauge shotgun. Christopher Gailey died as a result of these wounds. On 24 January 2000, defendant was indicted by the grand jury of Montgomery County for the murder of Christopher Gailey, felonious larceny, and felonious possession of stolen goods. On 13 November 2003, a jury found defendant guilty of all charges. On 18 November 2003, the same jury returned a binding recommendation of death, and the trial court sentenced defendant accordingly. The trial court consolidated the two remaining offenses for judgment and sentenced defendant in the presumptive range to an active term of incarceration of ten to twelve months. Defendant appealed his convictions and sentence of death to this Court pursuant to N.C.G.S. § 7A-27(a). We find no error in defendant's conviction or his sentence.1


Before his 1998 escape from a North Carolina Department of Corrections work release program in which he was serving a sentence for numerous felony breaking or entering and felony larceny convictions, defendant met Vanessa Smith and they became romantically involved. Immediately following defendant's escape from the work release program, he met Smith in a parking lot, and the couple began moving around from hotel to hotel in this state, which Smith paid for with proceeds from a large settlement arising from her father's death. The couple also traveled to and resided sporadically in Chicago, Illinois; Spokane, Washington; San Diego, California; and Denver, Colorado, continuing to live primarily from the proceeds of Smith's settlement and spending large amounts of money on illegal drugs. Notably, while in Spokane, Smith paid a friend, Byron Johnson, five hundred dollars for a copy of his birth certificate and another identifying document. Defendant subsequently obtained a driver's license from the State of Washington in the name of Byron Johnson. Defendant's travels eventually brought him back to North Carolina, and in the summer of 1999, defendant, identifying himself as Byron Johnson, moved into a mobile home near Badin Lake, and Smith soon moved in with him. This mobile home was owned by Robert Johnson. In addition to defendant and Smith, Robert Johnson, Christopher Gailey, and Danny Lanier and his family resided in the mobile home. Christopher Gailey and defendant were long-time friends, but Smith never considered Gailey a friend. Life at the mobile home consisted of heavy partying, drinking, and drug abuse. Much of the drugs were provided by Gailey.

On 9 July 1999, the day of the murder, defendant told Smith and Gailey he had stashed some firearms in a cabin in the Uwharrie Forest, and they should retrieve them to sell the firearms for drugs. Robert Johnson testified he saw the three leave in Danny Lanier's truck, while Smith testified they left in Gailey's vehicle, a GMC pickup truck valued at $16,000. The three arrived that evening at the Uwharrie Forest, after which they entered the forest and walked for what Smith described as at least an hour. Smith smoked marijuana while defendant and Gailey used cocaine. Gailey carried a .45 caliber handgun, while defendant carried Gailey's twelve-gauge shotgun with a black pistol grip.

As they walked single file down a very narrow trail, defendant pushed Smith to the ground. He then fired the shotgun twice, first delivering a heavy buckshot blast into Gailey's back, and then firing lighter birdshot into Gailey's knee. Smith testified that she and defendant then went to the nearby cabin to sit and wait for Gailey to die. According to Smith's testimony, for seven to eight hours after defendant shot Gailey, he would creep over on his stomach to Gailey's body to throw rocks at him to discover if he would make a noise. During this waiting period, defendant told Smith that Gailey would never call her a "bitch" again and that he could not believe Gailey turned on him and was going to "rat him off" by reporting his location to the authorities. Eventually, defendant and Smith left the forest. On their way out, defendant told Smith that their story would be someone in the forest shot Gailey, and that a guy named Dustin had reason to want to harm Gailey. Smith testified that she heard Gailey fire his handgun numerous times as the couple left the forest.

Next, at defendant's direction Smith drove back to the trailer to get their belongings and to steal Gailey's wallet which included Gailey's automated teller machine (ATM) card. Smith ingested eight Xanax pills and then, driving Gailey's truck picked up defendant near the Uwharrie Forest, where he had previously hid the shotgun used in the murder. The couple then drove to Shallotte, North Carolina, to see Smith's friend, Jeff Brantley. Apparently Smith and defendant talked to some of the partygoers at Brantley's residence, one of whom was Jeffrey Page. Defendant wanted to sell Gailey's truck to Page for eight hundred dollars, and he explained to Page that the truck was owned by a "fellow" he shot in the forest. Smith testified she did not remember much that occurred in Shallotte, save a few times when defendant forced her to use Gailey's ATM card, until she woke up two days later at her former lesbian lover Lilly Efird's home.

Page decided to purchase the truck, and on 12 July 1999, drove to Albemarle, North Carolina along with Brantley, and two other men, to acquire the funds for the purchase. Upon their return to Shallotte, Page purchased the truck from defendant. Page subsequently sold the truck to a junk dealer in South Carolina.

Defendant, eight hundred dollars in hand, left for Denver once again. Smith and Efird traveled to Shallotte, and Smith borrowed, or according to Efird stole, Efird's money and car in order to travel to Denver to see defendant, believing she was pregnant with defendant's baby. After she arrived in Denver, she argued with defendant and became afraid he was going to kill her. Therefore, she returned to North Carolina and turned herself into the Charlotte-Mecklenburg Police, recounting the facts of the murder. Defendant was soon arrested in Denver. He made no incriminating statements and continually denied committing the murder during his postarrest interrogation.

Gailey's body was discovered on 11 July 1999 when Wesley Hopkins drove by it during an all-terrain vehicle expedition in the Uwharrie National Forest. John Butts, M.D., the State's Chief Medical Examiner, stated the autopsy of Gailey showed a shotgun wound to the back that exited in five different locations on the victim's right chest. This wound caused extensive bleeding and damage to his lung, ribs, and large blood vessels. According to Dr. Butts, this wound would have rendered the victim unconscious in a matter of minutes, and death would have followed relatively quickly. Additionally, the shot to the knee incapacitated Gailey such that he would have been unable to move or seek medical assistance. Dr. Butts was of the opinion it would have been extremely unlikely, considering the amount of blood lost, a person with those wounds would have survived even one or two hours.

Law enforcement found at the scene of the crime five spent shotgun shells, numerous live .45 caliber cartridges in a pouch attached to Gailey's belt loop, a full magazine for a .45 caliber handgun, and a .45 caliber handgun with one expended .45 caliber round casing still chambered. A yellow container found on or near Gailey's body contained $1,944.05 in currency.

Defendant presented no evidence during the guilt-innocence proceeding of the trial. The jury returned verdicts of guilty of first degree murder based on a theory of malice, premeditation, and deliberation; larceny; and felonious possession of stolen goods.

In the penalty proceeding, the State presented victim impact evidence by way of Gailey's mother, father, and sister. Defendant presented testimony of family members, a former teacher's assistant, and an expert who opined defendant would adapt well to prison life. The statutory aggravating circumstances submitted to the jury for consideration were: (1) The murder was committed for the purpose of avoiding or preventing a lawful arrest; (2) the murder was committed for pecuniary gain; and (3) the murder was especially heinous, atrocious, or cruel. The jury answered all of these aggravating factors in the affirmative. The jury also found two nonstatutory mitigating factors: (1) Scott Allen was deeply affected by the death of his grandfather; and (2) Scott Allen's death would have a detrimental impact on his mother, father, daughter, and other family members. The jury found unanimously and beyond a reasonable doubt that the mitigating circumstances were insufficient to outweigh the aggravating circumstances and that the aggravating circumstances were...

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