N.C. Supreme Court to rule on unprecedented case about a murder by cellphone | North Carolina | Indy Week

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N.C. Supreme Court to rule on unprecedented case about a murder by cellphone

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Nineteen-year-old Dylan Boston grips his .22-caliber rifle and stares at the elderly man, who has fallen to the kitchen floor. It's still daylight outside the 72-year-old victim's mobile home just south of Greensboro. So far, the murder-for-hire is going according to plan.

But Boston panics. He passes the rifle to Phillip Mabe, his 31-year-old roommate and fellow hit man, who fires a single shot in Paul Grainger's head, killing him.

Mabe and Boston hustle to Paul's lock box and grab the keys to his 1992 Pontiac Sunbird. They sprinkle valuables on the floor, staging a robbery. They hop into the car and speed to the prearranged pickup location—a nearby Food Lion—to meet the victim's daughter, who is awaiting their phone call.

Paul's murder made headlines in 2008 because of its sensationalism. In addition to Mabe and Boston, Paul's daughter, Brandi, and wife, Nancy, were charged with murder. Everyone took a plea deal, except Brandi, a Pfeiffer University sophomore whose case went to trial in 2011. A jury convicted her of first-degree murder, and a judge sentenced her to life in prison without parole. She is currently housed in a medium-level facility in Troy, N.C.

But Brandi, now 24, kept fighting her conviction, arguing that she was nowhere near the crime scene when her father was shot. In 2012 the North Carolina Court of Appeals sided with her unanimously, ruling that she was more likely guilty of accessory to murder. If convicted on that lesser charge, she could serve not life, but as few as eight years.

The state attorney general appealed to the N.C. Supreme Court, which agreed to take the case. Earlier this month in Raleigh, six judges heard arguments in this unprecedented case, one that centers on the definition of "constructive presence" at a crime scene.

In order to be convicted of first-degree murder, a suspect must be constructively or actively present. Until now, North Carolina has defined constructive presence as being "close enough to a crime scene to render assistance" to the perpetrators. But that definition was written decades before the digital era, begging the question: Can someone help commit a murder from miles away, as in this case, via cellphone?

The Paul Grainger case marks the first time the state's highest court has considered that question. Inside the courtroom, Assistant Attorney General Mary Carla Hollis argued that Brandi was no different from a bank robber driving a getaway car, with an active role from beginning to end.

"She had a cellular telephone and the ability to communicate with [the hit men]," said Hollis, adding, "We certainly have a new landscape in technology."

Paul was a strict father with a temper. Brandi and her mother, Nancy, complained he was physically abusive. One of Brandi's friends testified that Brandi hated her father and wanted him killed.

Brandi and Nancy plotted to kill Paul and hired Boston and Mabe to do it. (That's according to Boston, who became a state's witness as part of a plea deal to avoid a life sentence.) Brandi promised to pay the men $8,000, along with Paul's Sunbird. According to Boston, Brandi told the hit men they'd receive payment after Nancy collected on the life insurance policy.

The evening before the murder, Nancy picks up Brandi from her college dormitory. The next day, shortly after lunch, mother and daughter leave the house while Paul watches television.

An hour later, Brandi drops off Mabe and Boston near her father's trailer. Boston is carrying the .22 inside his pants leg. He and Mabe pry open the front door.

Hearing a sound, Paul rises from the couch and enters the kitchen. He is strong for his age and grabs a hammer from the counter. Paul and Mabe start to grapple and the elderly man falls.

Boston fingers the trigger.

I'm just not a killer, he tells himself.

He hands the gun to Mabe, who fires.

As they leave the trailer, Boston calls Brandi, who is at a nearby Kmart. It's done.

Minutes later, Brandi meets them at the Food Lion, five miles away from the trailer. They ditch Paul's Sunbird, and Brandi drives them home. Safe inside, she lights a cigarette.

In 1971, the North Carolina Supreme Court heard arguments in State v. Price, which focused on an attempted armed robbery in Mecklenburg County. Two suspects entered a store, and one struck the owner in the head with a blackjack. Meanwhile an accomplice, Henry Lee Price Jr., sat inside a parked getaway car a quarter-mile away. When the robbers fled the store, Price picked one of them up.

In its precedent-setting opinion, the Supreme Court ruled that Price, even though he never entered the store, was still guilty of the armed robbery.

Following the Price ruling, other defendants have been judged to be constructively present. Some have been as close as a "nearby intersection" (in the case of a getaway driver) and as distant as 150 yards away (in the case of a lookout with a sniper rifle).

During Brandi's original trial, the judge did not instruct the jury to consider convicting her of being an accessory to murder in lieu of first-degree murder. That decision was an error, according to the Court of Appeals. In its opinion, Brandi did not resemble a getaway driver or a sniper peering at a crime scene from 150 yards away.

"None of the evidence mentioned by the state shows that defendant remained close enough to be able to render assistance if needed," the judges said.

In the hours following the murder, Brandi returns to Kmart and buys a sweater vest. She goes to the mall. She calls a friend. "It's done. He's gone."

That evening she reunites with Nancy, and the two women visit Brandi's grandfather at his nursing home. At night they drive to Paul's trailer, where Brandi sees her father's limp arm on the ground. Nancy calls 911.

When investigators arrive, they note that Brandi is not emotional. During later interviews it seems her story is rehearsed. She vacillates on details. Her alibi does not match with surveillance footage.

Sensing the detectives' suspicions, Brandi starts talking. She says that Mabe and Boston were only supposed to rough him up and steal his car. That after dropping off Boston and Mabe at the trailer she had second thoughts. That when she drove back in an attempt to thwart the job, Boston and Mabe were already gone.

Inside the Supreme Court this month, Justice Mark Martin pressed Duncan McCormick, Brandi's attorney, about whether she participated in the murder via cellphone. Martin seemed skeptical that a college-educated suspect should be convicted as an accessory after "basically micro-managing a murder," he said. Why didn't she try to stop it with a phone call?

McCormick pointed out that such a question was never presented to the jury at the original trial, and it was not the Supreme Court's job to tackle it. He added that a reasonable jury could have concluded that Brandi wasn't constructively present. "She was at Kmart," McCormick said.

Hollis, the assistant attorney general, argued that society has moved beyond "the 1970s," and that now communications occur remotely. Brandi could continually monitor the crime, she said.

Hollis also argued that because Brandi drove the hit men away from her father's stolen Pontiac Sunbird, she participated in a felony robbery, which links her to felony murder. (A felony murder is the killing of an individual during the commission of another felony.)

Brandi, said Hollis, "was close enough to render assistance, and she did in fact render assistance by taking them away from the most important piece of property to the murder, and that is the Pontiac."

The court is deliberating the case; a ruling is expected later this year.

This article appeared in print with the headline "Call waiting."

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