Appeal by defendant from judgments entered 25 January 2005 by
Judge Michael E. Helms in Forsyth County Superior Court. Heard in
the Court of Appeals 7 March 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Joan M. Cunningham, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Daniel Shatz, for defendant-appellant.
Defendant Bobby Leon Griffin appeals from his convictions for
first degree murder and making a false bomb report. Defendant
argues primarily that the trial court erred by excluding evidence
and arguments about defendant's mental illness and voluntary
intoxication, as these two defenses tend to negate the element of
specific intent. We need not, however, reach the merits of
defendant's arguments since the jury convicted him of first degree
murder based on lying in wait _ a theory that does not require the
State to prove specific intent.
Facts and Procedural History
In February 2003, defendant and his wife were living at 2804
Barker Court, Winston-Salem, North Carolina. Defendant had beenunemployed since March 2002, when he had left his job at the North
Carolina Department of Corrections. Defendant had married his
wife, Mary Stephens, in July 2002. Ms. Stephens, a social worker
in the Guilford County Mental Health System, testified that the
couple's practice was for defendant to make mortgage payments and
pay the household bills out of his own, separate bank account.
At some point after the marriage, defendant stopped making
mortgage payments on the house. A foreclosure sale was eventually
held, and the only bid was placed by Frank Lama. Lama and his
business partner, Ruben Sanchez, were in the business of purchasing
foreclosed homes and fixing them up for resale. After purchasing
defendant's home, Lama attempted to arrange a lease with defendant
so that defendant could continue living in the house. Because
defendant missed his appointment to sign the lease and paid no
rent, Lama and Sanchez instituted eviction proceedings. Ms.
Stephens had no knowledge of any of these events.
The eviction was set for 2 June 2003 at 11:45 a.m. On that
morning, defendant drove his wife to work. Later, he called a
former co-worker, Shirley Gibson, at work, told her that he was
calling to say goodbye, and explained that his home was about to be
foreclosed and he was contemplating suicide.
At 11:45 a.m., Lama and Sanchez, together with Deputy Sheriff
Victoria Hodge of the Forsyth County Sheriff's Department, met at
defendant's house. Hodge and Lama climbed the steps to the porch,
while Sanchez waited on the lawn. In response to Hodge's ringing
the doorbell, defendant opened the door and pointed a gun inHodge's face. Hodge pushed the gun to one side and yelled to Lama
and Sanchez to run. As Hodge was drawing her own weapon, defendant
began to fire his gun. Sanchez and Hodge ran in different
directions away from the house, but Lama was shot in his head and
spine and died almost immediately on the front porch.
Hodge radioed for backup. As police pulled into Barker Court,
defendant walked onto the front lawn of the house and shot himself
in the face. He remained conscious, however, and told officers
that "the house was going to blow." He added, "I did what I meant
to do, I did what I done." Officers at the scene described
defendant as very calm and normal and his speech unslurred.
Defendant was taken to the police station, where his blood
alcohol level was determined to be .19. He told police that he had
received a notice of the eviction in the mail and had gotten
"ready"; that he had done "what [he] set out to do"; and that he
had shot Lama, watched him fall, and then shot him again. He also
told police that he had no regrets for what he had done and that he
was angry that Deputy Hodge had run away instead of shooting back
Defendant continued to maintain that there was a bomb in the
house. When defendant's wife arrived at the police station later
in the day, defendant initially told her that the house was rigged
with a bomb and that she should not go in. After she began crying
hysterically, defendant admitted that there was no bomb.
Defendant was indicted on one count of first degree murder,
one count of felonious assault with a firearm on a governmentofficial, and one count of communicating a false bomb report. He
was tried non-capitally, and, on 25 January 2005, a jury convicted
him of all three charges. The jury found defendant guilty of first
degree murder based on three different theories: murder by lying in
wait; felony murder based on the assault charge; and murder with
malice, premeditation, and deliberation.
The trial court sentenced defendant to life imprisonment
without parole for the murder conviction followed by a consecutive
sentence of six to eight months for the false bomb report
conviction. The court arrested judgment on the conviction for
felonious assault on a government officer because it was the felony
that formed the basis for defendant's felony murder conviction.
Defendant timely appealed.
Defendant's first arguments on appeal all relate to whether
defendant had the capacity to form the specific intent to commit
first degree murder. He contends that (1) the trial court
improperly excluded his wife's testimony about a hospitalization of
defendant and defendant's possible post traumatic stress syndrome
from service in the Vietnam War; and (2) the trial court should
have allowed defense counsel to discuss, during closing arguments,
defendant's alcohol consumption on the morning of the murder.
Defendant contends that his wife's testimony and the fact of his
alcohol consumption would have permitted the jury to conclude that
the State had failed to prove that defendant had the specific
intent to commit first degree murder. The jury, however, convicted defendant of first degree murder
under three separate theories: malice, premeditation, and
deliberation; felony murder; and murder by lying in wait.
Although, generally, "'[s]pecific intent to kill is an essential
element of first degree murder . . . .'" State v. Chapman
N.C. 328, 374, 611 S.E.2d 794, 827 (2005) (quoting State v. Jones
303 N.C. 500, 505, 279 S.E.2d 835, 838-39 (1981)), murder
perpetrated by lying in wait is not a specific intent crime.
(See footnote 1)
our Supreme Court has explained, "[p]remeditation and deliberation
are not elements of the crime of first-degree murder perpetrated by
means of lying in wait, nor is a specific intent to kill. The
presence or absence of these elements is irrelevant." State v.
, 326 N.C. 368, 375, 390 S.E.2d 314, 320, cert. denied
U.S. 871, 112 L. Ed. 2d 155, 111 S. Ct. 192 (1990).
In this case, even if we were to hold that the wife's
testimony and counsel's argument as to intoxication should have
been allowed, defendant's first degree murder conviction and
sentence would still stand based on the lying in wait verdict.
Accordingly, any error resulting from the exclusion of evidence or
arguments tending to negate defendant's specific intent is
(See footnote 2)
See State v. Harris
, 338 N.C. 211, 224-25, 449 S.E.2d462, 468 (1994) (holding that defendant had failed to show
prejudice from trial court's exclusion of a psychologist's
testimony, since the testimony only addressed the issue "whether
defendant could have formed the intent to kill, whether defendant
could premeditate and deliberate, and whether defendant could act
with malice," and therefore the "diagnosis could have had no effect
on the finding of first-degree murder by lying in wait since a
defense of lack of mental capacity does not apply to lying in
wait"); State v. Baldwin
, 330 N.C. 446, 462, 412 S.E.2d 31, 41
(1992) ("Because voluntary intoxication may only be considered as
a defense to specific intent crimes, it is . . . irrelevant to a
charge of first-degree murder by lying in wait, a crime that does
not require a finding of specific intent." (internal citations
Defendant also argues that the trial court erred in denying
his request to submit the lesser included offense of second degree
murder to the jury. "Second-degree murder is a lesser included
offense of first-degree premeditated and deliberate murder; it
lacks the elements of premeditation and deliberation." State v.
, 132 N.C. App. 173, 178, 510 S.E.2d 683, 687, disc. review
, 350 N.C. 838, 538 S.E.2d 571 (1999). Our Supreme Court has
held, however, that when a defendant is convicted of felony murder,
any error in failing to instruct as to second degree murder is
harmless if there was no evidence on which defendant could have
been acquitted of felony murder while being found guilty of second
degree murder. See State v. Robinson
, 342 N.C. 74, 81, 463 S.E.2d218, 222 (1995) (holding that any error trial court committed in
failing to instruct jury on second degree murder did not entitle
defendant to a new trial, since jury found defendant guilty of
felony murder based on his pleading guilty to kidnaping, robbery,
and felonious larceny), cert. denied
, 517 U.S. 1197, 134 L. Ed. 2d
793, 116 S. Ct. 1693 (1996); State v. Williams
, 343 N.C. 345, 363-
64, 471 S.E.2d 379, 389 (1996) (because there was no evidence that
defendant did not participate in the underlying felony of theft of
victim's car and personal property, defendant not entitled to
instruction on second degree murder), cert. denied
, 519 U.S. 1061,
136 L. Ed. 2d 618, 117 S. Ct. 695 (1997).
Here, it was undisputed that defendant committed the felony of
assault with a deadly weapon upon a government officer and that, in
the course of this felony, he shot and killed Lama. Because no
reasonable construction of the facts presented at trial would have
allowed the jury to acquit defendant of felony murder while
convicting him of second degree murder _ an intentional killing
without malice, premeditation, or deliberation _ defendant was not
entitled to an instruction on second degree murder. Therefore,
this assignment of error is overruled.
Judges McGEE and CALABRIA concur.
Report per Rule 30(e).