IN THE SUPREME COURT OF NORTH CAROLINA
No. 30PA13
Filed 19 December 2014
STATE OF NORTH CAROLINA
v.
BRANDI LEA GRAINGER
On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous
decision of the Court of Appeals, ___ N.C. App. ___, 741 S.E.2d 364 (2012), vacating
a judgment entered on 4 October 2011 by Judge Edgar B. Gregory in Superior
Court, Randolph County, and remanding for a new trial. Heard in the Supreme
Court on 6 January 2014.
Roy Cooper, Attorney General, by Mary Carla Hollis, Assistant Attorney
General, for the State-appellant.
Duncan B. McCormick for defendant-appellee.
HUDSON, Justice.
The State seeks review of the opinion of the Court of Appeals granting
defendant a new trial on her conviction of first-degree murder. The Court of
Appeals held that a new trial was merited because the trial court erred in failing to
instruct the jury on accessory before the fact under N.C.G.S. §14-5.2 and that the
error was prejudicial. State v. Grainger, ___ N.C. App. ___, ___, 741 S.E.2d 364, 370
(2012). Because defendant was convicted of first-degree murder under theories of
both premeditation and deliberation and the felony murder rule, and defendant’s
STATE V. GRAINGER
Opinion of the Court
conviction for first-degree murder under the theory of felony murder is supported by
the evidence, we hold that no new trial is required, and we reverse the opinion of
the Court of Appeals.
After pleading not guilty, defendant was tried noncapitally at the 26
September and 3 October 2011 criminal sessions of Superior Court, Randolph
County. The State’s evidence at trial tended to show the following: In 2008
defendant, her mother, Mr. Phillip Mabe, and Mr. Dylan Boston conspired to kill
defendant’s father. Boston testified that Mabe and he discussed with defendant
their plan to murder the victim and make it look like a robbery. In exchange for
killing her father, defendant promised Mabe and Boston money from the victim’s
life insurance policy. On 6 September 2008, defendant picked up Mabe and Boston
in her car, drove them by her house to show them where her father would be, and
then dropped them off nearby. At that point, defendant knew that Boston was
carrying a gun in his pant leg. Mabe and Boston went to the Grainger residence,
shot the victim in the head, took some items from a lock box, and left the house in
the victim’s car. Defendant did not accompany Mabe and Boston to the residence;
she was shopping with her mother and cousin at Kmart. After Boston and Mabe
left defendant’s house, they called defendant to pick them up at a Food Lion parking
lot. She did so, dropped them off at Mabe’s house, and then went back to Kmart.
Defendant and her mother “discovered” the victim’s body later that night and called
the police.
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STATE V. GRAINGER
Opinion of the Court
Defendant told a different story. Although she did not testify at trial, she did
give several statements to the police over the course of their investigation. After
initially denying any involvement, defendant eventually told the police that she had
planned an attack on her father, but that the plan was just for Mabe and Boston “to
go in the front door, trash the place and to freak my dad, Paul Grainger, freak him
out a little bit, scare him.” She did not admit that there was any plan to kill her
father, or even to rob him.
During the jury charge conference, defendant requested an instruction on
accessory before the fact under N.C.G.S. § 14-5.2. Section 14-5.2 states in relevant
part:
[i]f a person who heretofore would have been guilty and
punishable as an accessory before the fact is convicted of a
capital felony, and the jury finds that his conviction was
based solely on the uncorroborated testimony of one or
more principals, coconspirators, or accessories to the
crime, he shall be guilty of a Class B2 felony.
N.C.G.S. § 14-5.2 (2013). The trial court declined to give the instruction. The jury
returned a verdict finding defendant guilty of first-degree murder: “A. On the basis
of malice, premeditation and deliberation” and “B. Under the first degree felony
murder rule.” She was sentenced to life imprisonment without parole. Defendant
appealed. The Court of Appeals ordered a new trial, reasoning that it was error for
the trial court not to have given the accessory before the fact instruction and that
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STATE V. GRAINGER
Opinion of the Court
the error was prejudicial. Grainger, ___ N.C. App. at ___, 741 S.E.2d at 370. The
State filed a petition for discretionary review, which we allowed.
Defendant argues that she was entitled to the instruction on accessory before
the fact because of a conflict in the evidence regarding her intent towards her
father. She denied planning to kill her father, admitting only that she wanted
Boston and Mabe to rough him up and “scare him,” while Boston testified that the
plan was to murder the father. Defendant argues that this conflict shows that
Boston’s testimony was uncorroborated and that the “uncorroborated testimony of
one . . . principal[ ]” entitled her to the instruction. N.C.G.S. § 14-5.2
Defendant argues extensively that section 14-5.2 applies to her because any
first-degree murder trial involves a “capital felony” within the purview of N.C.G.S. §
15A-2004, regardless of whether she was tried capitally or not. The State responds
otherwise, contending that section 14-5.2 does not apply to defendant or others like
her who are not tried capitally and thus are not subject to the death penalty as a
possible punishment. The Court of Appeals resolved this issue in favor of
defendant, holding that first-degree murder is statutorily a capital felony, even if
she was not tried capitally, relying on our decision in State v. Cummings, 352 N.C.
600, 631-32, 536 S.E.2d 36, 58-59 (2000), cert. denied, 532 U.S. 997 (2001).
Grainger, ___ N.C. App. at ___, 741 S.E.2d at 369.
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STATE V. GRAINGER
Opinion of the Court
The Court of Appeals did not discuss that defendant was also convicted of
first-degree murder under the theory of felony murder; however, we conclude that
because the evidence supporting her conviction on this theory does not rely solely on
the uncorroborated testimony of a principal, section 14-5.2 does not apply to her
conviction on this theory. The record reveals that defendant’s own statements to
the police provide support for her conviction for first-degree felony murder. “[T]o
support convictions for a felony offense and related felony murder, all that is
required is that the elements of the underlying offense and the murder occur in a
time frame that can be perceived as a single transaction.” State v. Thomas, 329
N.C. 423, 434-35, 407 S.E.2d 141, 149 (1991). Here defendant herself admitted that
she asked Mabe and Boston to “freak out” her father; whether she intended her
father to be murdered is superfluous under this theory. “A felony comes within the
purview of the felony murder rule if its commission or attempted commission
creates a substantial foreseeable risk to human life and actually results in the loss
of life.” State v. Hutchins, 303 N.C. 321, 345, 279 S.E.2d 788, 803 (1981) (citation
omitted). Certainly, sending Mabe and Boston to attack her father, knowing they
were armed, “create[d] a substantial foreseeable risk to human life.” Id. In our
review of defendant’s conviction under the felony murder rule, we need not consider
the testimony of coconspirator Boston regarding her intent, as we would if
reviewing a conviction solely under the theory of premeditation and deliberation.
Therefore, because her conviction for first-degree murder under a theory of felony
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STATE V. GRAINGER
Opinion of the Court
murder is supported by ample evidence, defendant’s conviction must stand. Cf.
State v. McLemore, 343 N.C. 240, 249, 470 S.E.2d 2, 7 (1996) (concluding that
“[a]lthough the defendant should not have been convicted of felony murder, the
verdict cannot be disturbed if the evidence supports a conviction based on
premeditation and deliberation”). Accordingly, the decision of the Court of Appeals
is reversed.
REVERSED.
Justices BEASLEY and HUNTER did not participate in the consideration or
decision of this case.
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