Heard in the Court of Appeals June 4, 2014
Mecklenburg County. Nos. 10 CRS 201663, 10 CRS 201667, 10 CRS 201670, 10 CRS 201673.
Attorney General Roy Cooper, by Special Deputy Attorney General Sonya Calloway-Durham, for the State.
Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Paul M. Green, for defendant-appellant.
GEER, Judge. Judges BRYANT and CALABRIA concur.
Appeal by defendant from judgments entered 27 August
2013 by Judge Robert T. Sumner in Mecklenburg County Superior Court.
Defendant Franklin Marcus Grullon, Jr. appeals his convictions of first degree murder, attempted robbery, and conspiracy to commit armed robbery. Defendant argues primarily that the trial court erred in instructing the jury on a lying in wait theory of first degree murder because the State offered no evidence that defendant had a " deadly purpose" to kill. However, because our courts do not require proof of a specific intent to kill -- which we hold is synonymous with a deadly purpose to kill -- in order to support a lying in wait theory of murder, and because the evidence presented at trial was sufficient to support a jury instruction regarding lying in wait, we find no error.
The State's evidence tended to show the following facts. In the winter of 2009, defendant became acquainted with Raymond Ervin and stayed at Ervin's apartment in Charlotte, North Carolina several times. Ervin had previously sold drugs with Jonathan Crawford. While staying at Ervin's apartment, defendant saw Crawford's car and noted that it had valuable tire rims that were worth $10,000.00 or more. This prompted defendant -- under the pretense of wanting to get involved in drug dealing -- to begin asking Ervin for information about Crawford and his car.
After several weeks, defendant formulated a plan to rob Crawford. When defendant told Ervin about his plan, Ervin informed defendant that Crawford did not carry a gun and that Crawford often frequented the Chocolate City Club in South Carolina, stopping afterward at a Hess 24-hour gas station.
On 7 January 2010, defendant engaged in a three-way phone call with his girlfriend and mother of his son, Lizzette Drumgo, and Jasmine Johnson. Throughout the call, Ervin could be heard in the background, sometimes instructing defendant on what to say. The four formulated a plan for Johnson to text Crawford, pretending to have met him at the Chocolate City or the Hess station. Johnson would then lure Crawford to an empty apartment where the group could rob him.
Johnson texted Crawford as planned. Although Crawford was initially skeptical of Johnson's story ...