Criminal Practice — Murder – Lying in Wait – Intent to Kill – Unnecessary

State v. Grullon (Lawyers Weekly No. 15-07-0242, 14 pp.) (Martha Geer, J.) Appealed from Mecklenburg County Superior Court (Robert Sumner, J.) N.C. App.

Holding: Where defendant formulated a plan to rob the victim, he waited under a darkened staircase for the opportunity to do so, and the attack ended in murder, the trial court correctly gave a lying-in-wait jury instruction, and no instruction on intent to kill was required.

We find no error in defendant’s convictions of first-degree murder, attempted robbery and conspiracy to commit armed robbery.

Defendant’s objection to the jury instruction was overruled. He did not “invite error” when he failed to repeat his objection when the judge re-read the instruction at the jury’s request. The jury instruction issue is properly preserved for appellate review.

Defendant contends that the trial court erred in instructing the jury on a lying-in-wait theory of murder because the state failed to present evidence that, when lying in wait, defendant had a “deadly purpose” or “purpose to kill.”

However, a requirement that the state prove a “deadly purpose” or a “purpose to kill” is no different that requiring proof of a deadly intent or an intent to kill. A specific intent to kill is not an element of the crime of first-degree murder perpetrated by means of lying in wait.

No error.