{ "id": 8472597, "name": "STATE OF NORTH CAROLINA v. ROBERT LEWIS McCLAIN", "name_abbreviation": "State v. McClain", "decision_date": "2005-04-19", "docket_number": "No. COA04-938", "first_page": "657", "last_page": "673", "citations": [ { "type": "official", "cite": "169 N.C. App. 657" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "296 N.C. 623", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569846 ], "year": 1979, "opinion_index": -1, "case_paths": [ "/nc/296/0623-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 15-144", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "582 S.E.2d 593", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "603" } ], "opinion_index": 0 }, { "cite": "357 N.C. 257", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491439 ], "year": 2003, "pin_cites": [ { "page": "272" } ], "opinion_index": 0, "case_paths": [ "/nc/357/0257-01" ] }, { "cite": "280 S.E.2d 175", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "178" } ], "opinion_index": 0 }, { "cite": "52 N.C. App. 713", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12170730 ], "year": 1981, "pin_cites": [ { "page": "718" } ], "opinion_index": 0, "case_paths": [ "/nc-app/52/0713-01" ] }, { "cite": "235 S.E.2d 844", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "849", "parenthetical": "holding witness's use of the term \"rape\" did not constitute an opinion on a question of law, as it was merely a \"convenient shorthand term, amply defined by the balance of her testimony\"" } ], "opinion_index": 0 }, { "cite": "293 N.C. 147", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561692 ], "year": 1977, "pin_cites": [ { "page": "154", "parenthetical": "holding witness's use of the term \"rape\" did not constitute an opinion on a question of law, as it was merely a \"convenient shorthand term, amply defined by the balance of her testimony\"" } ], "opinion_index": 0, "case_paths": [ "/nc/293/0147-01" ] }, { "cite": "478 S.E.2d 163", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1996, "pin_cites": [ { "page": "179" } ], "opinion_index": 0 }, { "cite": "345 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 54098 ], "year": 1996, "pin_cites": [ { "page": "31" } ], "opinion_index": 0, "case_paths": [ "/nc/345/0001-01" ] }, { "cite": "391 S.E.2d 144", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1990, "pin_cites": [ { "page": "153" }, { "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "326 N.C. 489", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5305969 ], "year": 1990, "pin_cites": [ { "page": "501" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0489-01" ] }, { "cite": "911 F.2d 113", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10531717 ], "year": 1990, "pin_cites": [ { "page": "114" } ], "opinion_index": 0, "case_paths": [ "/f2d/911/0113-01" ] }, { "cite": "941 F.2d 1102", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 11721488 ], "year": 1991, "pin_cites": [ { "page": "1109-10" } ], "opinion_index": 0, "case_paths": [ "/f2d/941/1102-01" ] }, { "cite": "400 S.E.2d 712", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "727-28" } ], "opinion_index": 0 }, { "cite": "328 N.C. 99", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2540746 ], "year": 1991, "pin_cites": [ { "page": "127" } ], "opinion_index": 0, "case_paths": [ "/nc/328/0099-01" ] }, { "cite": "467 S.E.2d 45", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "52" } ], "opinion_index": 0 }, { "cite": "342 N.C. 502", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 796116 ], "year": 1996, "pin_cites": [ { "page": "512-13" } ], "opinion_index": 0, "case_paths": [ "/nc/342/0502-01" ] }, { "cite": "540 S.E.2d 334", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "340" } ], "opinion_index": 0 }, { "cite": "353 N.C. 122", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135908 ], "year": 2000, "pin_cites": [ { "page": "128" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0122-01" ] }, { "cite": "488 S.E.2d 550", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1997, "pin_cites": [ { "page": "560", "parenthetical": "citing Hernandez, 500 U.S. at 359, 114 L. Ed. 2d at 405" }, { "page": "561" }, { "page": "560", "parenthetical": "citations omitted" }, { "page": "561" } ], "opinion_index": 0 }, { "cite": "346 N.C. 291", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139375 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "307-08", "parenthetical": "citing Hernandez, 500 U.S. at 359, 114 L. Ed. 2d at 405" }, { "page": "308-09" } ], "opinion_index": 0, "case_paths": [ "/nc/346/0291-01" ] }, { "cite": "500 U.S. 352", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6223686 ], "weight": 9, "year": 1991, "pin_cites": [ { "page": "359" }, { "page": "405" }, { "page": "359" }, { "page": "405" }, { "page": "359" }, { "page": "405" } ], "opinion_index": 0, "case_paths": [ "/us/500/0352-01" ] }, { "cite": "369 S.E.2d 579", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "587" } ], "opinion_index": 0 }, { "cite": "322 N.C. 487", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2518417 ], "year": 1988, "pin_cites": [ { "page": "501" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0487-01" ] }, { "cite": "476 U.S. 79", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12787 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/us/476/0079-01" ] }, { "cite": "461 S.E.2d 724", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "341 N.C. 585", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793151 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/341/0585-01" ] }, { "cite": "131 L. Ed. 2d 569", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1995, "opinion_index": 0 }, { "cite": "514 U.S. 1071", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1339297, 1339621, 1340455, 1339305, 1339083, 1340365, 1339758, 1338927, 1339984, 1339085, 1339893, 1338716, 1339930, 1339164, 1338621 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/us/514/1071-08", "/us/514/1071-09", "/us/514/1071-13", "/us/514/1071-11", "/us/514/1071-01", "/us/514/1071-04", "/us/514/1071-06", "/us/514/1071-10", "/us/514/1071-03", "/us/514/1071-15", "/us/514/1071-02", "/us/514/1071-05", "/us/514/1071-14", "/us/514/1071-07", "/us/514/1071-12" ] }, { "cite": "449 S.E.2d 694", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "700" } ], "opinion_index": 0 }, { "cite": "338 N.C. 168", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2519058 ], "year": 1994, "pin_cites": [ { "page": "177-78" } ], "opinion_index": 0, "case_paths": [ "/nc/338/0168-01" ] }, { "cite": "472 S.E.2d 920", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "926" } ], "opinion_index": 0 }, { "cite": "344 N.C. 65", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867565 ], "year": 1996, "pin_cites": [ { "page": "74" } ], "opinion_index": 0, "case_paths": [ "/nc/344/0065-01" ] }, { "cite": "558 S.E.2d 109", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "147" } ], "opinion_index": 0 }, { "cite": "355 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 219986 ], "year": 2002, "pin_cites": [ { "page": "59" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0001-01" ] }, { "cite": "484 S.E.2d 379", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1997, "pin_cites": [ { "page": "381" }, { "page": "382", "parenthetical": "citations omitted" }, { "page": "381-82" } ], "opinion_index": 0 }, { "cite": "346 N.C. 141", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139481 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "145" }, { "page": "146" } ], "opinion_index": 0, "case_paths": [ "/nc/346/0141-01" ] }, { "cite": "175 S.E. 836", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1934, "pin_cites": [ { "page": "838" } ], "opinion_index": 0 }, { "cite": "207 N.C. 6", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621595 ], "year": 1934, "pin_cites": [ { "page": "10" } ], "opinion_index": 0, "case_paths": [ "/nc/207/0006-01" ] }, { "cite": "473 S.E.2d 3", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "5", "parenthetical": "quoting Weil v. Herring, 207 N.C. 6, 10, 175 S.E. 836, 838 (1934)" } ], "opinion_index": 0 }, { "cite": "344 N.C. 190", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867543 ], "year": 1996, "pin_cites": [ { "page": "194", "parenthetical": "quoting Weil v. Herring, 207 N.C. 6, 10, 175 S.E. 836, 838 (1934)" } ], "opinion_index": 0, "case_paths": [ "/nc/344/0190-01" ] }, { "cite": "533 S.E.2d 168", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "197" } ], "opinion_index": 0 }, { "cite": "352 N.C. 364", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 684963 ], "year": 2000, "pin_cites": [ { "page": "403-04" } ], "opinion_index": 0, "case_paths": [ "/nc/352/0364-01" ] }, { "cite": "252 S.E.2d 720", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "215 S.E.2d 80", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "287 N.C. 408", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562950 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/287/0408-01" ] }, { "cite": "600 S.E.2d 453", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "459" } ], "opinion_index": 0 }, { "cite": "358 N.C. 676", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2985212 ], "year": 2004, "pin_cites": [ { "page": "685" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0676-01" ] }, { "cite": "374 S.E.2d 573", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "575" } ], "opinion_index": 0 }, { "cite": "323 N.C. 684", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2565596 ], "year": 1989, "pin_cites": [ { "page": "689" } ], "opinion_index": 0, "case_paths": [ "/nc/323/0684-01" ] }, { "cite": "273 S.E.2d 666", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1981, "pin_cites": [ { "page": "669" }, { "page": "698" } ], "opinion_index": 0 }, { "cite": "302 N.C. 101", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563956 ], "year": 1981, "pin_cites": [ { "page": "104" } ], "opinion_index": 0, "case_paths": [ "/nc/302/0101-01" ] }, { "cite": "581 S.E.2d 442", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "parenthetical": "quoting State v. Jackson, 302 N.C. 101, 104, 273 S.E.2d 666, 669 (1981)" } ], "opinion_index": 0 }, { "cite": "357 N.C. 168", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491396, 491752, 491593, 491723, 491412, 491647, 491485, 491839 ], "year": 2003, "pin_cites": [ { "parenthetical": "quoting State v. Jackson, 302 N.C. 101, 104, 273 S.E.2d 666, 669 (1981)" } ], "opinion_index": 0, "case_paths": [ "/nc/357/0168-04", "/nc/357/0168-08", "/nc/357/0168-01", "/nc/357/0168-07", "/nc/357/0168-05", "/nc/357/0168-06", "/nc/357/0168-03", "/nc/357/0168-02" ] }, { "cite": "568 S.E.2d 276", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2002, "pin_cites": [ { "page": "278" }, { "page": "279" }, { "page": "278" } ], "opinion_index": 0 }, { "cite": "152 N.C. App. 694", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9251313 ], "year": 2002, "pin_cites": [ { "page": "697" } ], "opinion_index": 0, "case_paths": [ "/nc-app/152/0694-01" ] }, { "cite": "599 S.E.2d 906", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "opinion_index": 0 }, { "cite": "358 N.C. 374", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2987094 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/nc/358/0374-01" ] }, { "cite": "560 S.E.2d 151", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "355 N.C. 208", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220070 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc/355/0208-01" ] }, { "cite": "296 N.C. 623", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569846 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/296/0623-01" ] }, { "cite": "150 S.E.2d 47", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "pin_cites": [ { "page": "49" } ], "opinion_index": 1 }, { "cite": "268 N.C. 124", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560389 ], "year": 1966, "pin_cites": [ { "page": "127" } ], "opinion_index": 1, "case_paths": [ "/nc/268/0124-01" ] }, { "cite": "361 S.E.2d 882", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "886" } ], "opinion_index": 1 }, { "cite": "321 N.C. 31", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2568550 ], "year": 1987, "opinion_index": 1, "case_paths": [ "/nc/321/0031-01" ] }, { "cite": "440 S.E.2d 301", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "304" } ], "opinion_index": 1 }, { "cite": "113 N.C. App. 807", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524791 ], "year": 1994, "pin_cites": [ { "page": "811" } ], "opinion_index": 1, "case_paths": [ "/nc-app/113/0807-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1220-3", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2004, "pin_cites": [ { "page": "(23)" } ], "opinion_index": 1 }, { "cite": "531 S.E.2d 428", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "456", "parenthetical": "same" }, { "page": "445", "parenthetical": "quotation omitted" } ], "opinion_index": 1 }, { "cite": "352 N.C. 158", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 685078 ], "year": 2000, "pin_cites": [ { "page": "206", "parenthetical": "same" } ], "opinion_index": 1, "case_paths": [ "/nc/352/0158-01" ] }, { "cite": "478 S.E.2d 163", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "179" } ], "opinion_index": 1 }, { "cite": "345 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 54098 ], "year": 1996, "pin_cites": [ { "page": "31" } ], "opinion_index": 1, "case_paths": [ "/nc/345/0001-01" ] } ], "analysis": { "cardinality": 1469, "char_count": 39554, "ocr_confidence": 0.749, "pagerank": { "raw": 7.317152153836959e-08, "percentile": 0.43449927003466227 }, "sha256": "8e7225cff95d125029594f52de19745f472811119b04ca751718091d91a26cf4", "simhash": "1:cb49da18762e3718", "word_count": 6521 }, "last_updated": "2023-07-14T22:06:54.593382+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge HUDSON concurs.", "Judge WYNN concurs in result in a separate opinion." ], "parties": [ "STATE OF NORTH CAROLINA v. ROBERT LEWIS McCLAIN" ], "opinions": [ { "text": "STEELMAN, Judge.\nDefendant, Robert Lewis McClain, appeals his conviction for first-degree murder. For the reasons discussed herein, we affirm the trial court.\nThe evidence at trial tended to show that defendant was mildly mentally retarded. At the time of the murder, defendant worked at TPI Commissary warehouse in Charlotte, with the victim, David Evans. The two men worked as a team, as order pullers. Defendant\u2019s responsibilities included reading orders, which contained information as to the description of the item, its number, quantity, and loca-' tion in the warehouse. Defendant would locate the items and load them onto an electric pallet jack for shipment. Testimony at trial indicated Evans teased defendant at work because of defendant\u2019s mental retardation.\nOn 15 March 1994, defendant and Evans had an argument when Evans arrived late to work. After work that day, defendant walked out with a co-worker, Michael McFadden. They walked over to defendant\u2019s car, where defendant opened the glove compartment and showed McFadden his nine millimeter pistol. As Evans was leaving work, defendant called him over to his car and said, \u201cWhat was this sh\u2014 you were talking all day?\u201d Defendant did not point his gun at Evans, but he raised it high enough that Evans could see it. After seeing the gun, Evans went to his vehicle and left.\nThe next day, Evans went to work and reported to his supervisor, Frederick Cantelmo, that defendant had threatened him with a gun in the parking lot. Defendant did not go to work that day because he was in jail on unrelated charges of carrying a concealed weapon and speeding. When defendant came to work Thursday morning, Cantelmo spoke with defendant about his absence the day before. After they spoke, defendant returned to work and Cantelmo contacted the company\u2019s legal department for advice.\nAt approximately 11:00 a.m., Cantelmo called defendant to his office. Cantelmo told defendant he had consulted with the company attorney and was firing him because he had a weapon on company property. Defendant became angry and asked if it was Evans who reported he was carrying a gun. Cantelmo denied that Evans told him, instead stating that several employees had reported the incident. As defendant was leaving, he saw his friend McFadden and told him he had been fired for no reason, and he had a good lawyer and was going to sue.\nDefendant clocked out at approximately 11:15 a.m. He contacted a lawyer in South Carolina who had represented him regarding an automobile accident. The attorney informed defendant that he would need an attorney in North Carolina. At around 11:30 a.m., defendant drove to Shoney\u2019s where Robin Lowery (Lowery), his ex-girlfriend and the mother of his child, worked. Lowery had ended their relationship several days earlier. Defendant went inside and began following Lowery around, telling her that he wanted to talk. Lowery told defendant she would talk to him later, but defendant refused to leave. In order to lure Lowery from the restaurant, defendant told her he had a package in his car for her from a woman he worked with. Lowery followed defendant outside. Defendant pointed a sawed-off shotgun at her and threatened to kill her if she did not get in the car. Lowery got into defendant\u2019s car and he drove them down a gravel road to a yellow building in an industrial area and made Lowery get out of the car. He then made her get back into the car and drove further down the gravel road to a more secluded area. Defendant again made Lowery get out of the car, ripped off her hose and panties, and forced her to have sex with him. Defendant began walking in circles saying that Evans had caused him to lose his job and that he was going to jail for the rest of his life anyway so he was going to go all the way and kill Evans. Defendant then loaded a gun and shot Lowery in her left knee. After shooting Lowery the first time, he made her take her skirt off, saying he wanted them to find her looking like a slut. Defendant began walking around her again and shot her in the right knee. Lowery tried to get away from defendant and began to crawl towards the woods. She heard, a shot ring out and a bullet grazed her head. She fell to the ground and lay still until she heard defendant drive away. Lowery was later able to drag herself to a building where she received assistance. While waiting for the ambulance to arrive, Lowery called TPI to warn Evans.\nAt approximately 1:15 p.m. defendant went back to TPI. Defendant went into the warehouse and called out Evans\u2019 name twice. Evans and a co-worker were returning from their lunch break when they heard defendant call out. When Evans turned around, defendant shot him in the face at close range with the sawed-off shotgun. After defendant shot Evans, he turned and pumped his fist in the air and stated, \u201cYeah. I got that mother f- \u2014 [,]\u201d and then drove off.\nAt 2:25 p.m., defendant called 911 and reported he just committed two crimes and wanted to turn himself in. He agreed to unload the weapon and leave it outside and go back into the house and wait for the police. While speaking to the 911 dispatcher, defendant asked if he would be harmed or shot when the police arrived. The police arrived and arrested defendant.\nDefendant was diagnosed as being mentally retarded. Defendant . consistently scored below 70 on IQ tests. The IQ range for mental retardation is generally below 70. Defendant has problems with adaptive behavior skills such as reading, using a telephone book, using a map, and filling out a job application.\nIn May 1999, the trial court held a competency hearing to determine whether defendant was competent to stand trial. The trial court heard testimony from the State\u2019s and defendant\u2019s expert witnesses. The trial court found defendant was competent to stand trial. Jury selection initially began on 20 April 1999. Three days later, one of defendant\u2019s attorneys informed the court he could not continue with the trial. As a result, the trial court replaced him and continued the trial until 24 May 1999, on which date jury selection resumed. Two days later, the trial court declared a mistrial due to contact between the victim\u2019s father and a prospective juror. Jury selection resumed with a new panel of jurors.\nOn 25 June 1999, a jury found defendant guilty of first-degree murder of Evans. In accordance with the jury\u2019s recommendation, the trial judge sentenced defendant to death.\nDefendant filed a Motion for Appropriate Relief in the North Carolina Supreme Court contending he was retarded under the provisions of N.C. Gen. Stat. \u00a7 15A-2005. The Supreme Court remanded the case to the Mecklenburg County Superior Court for a hearing on defendant\u2019s motion. State v. McClain, 355 N.C. 208; 560 S.E.2d 151 (2002). On 13 April 2004, the Honorable Charles C. Lamm, Jr., found defendant was mentally retarded within the meaning of N.C. Gen. Stat. \u00a7 15A-2005(a)(l) and vacated defendant\u2019s death sentence. As a result, the Supreme Court transferred defendant\u2019s appeal of his first-degree murder conviction to this Court. State v. McClain, 358 N.C. 374; 599 S.E.2d 906 (2004).\nIn his first assignment of error, defendant contends the trial court erred in determining he was competent to stand trial. We disagree.\nN.C. Gen. Stat. 15A-1001(a) sets out the test for competency of a defendant to stand trial. The test is \u201c \u2018whether a defendant has capacity to comprehend his position, to understand the nature of the proceedings against him, to conduct his defense in a rational manner and to cooperate with his counsel....\u2019\u201d State v. Pratt, 152 N.C. App. 694, 697, 568 S.E.2d 276, 278 (2002), appeal dismissed and cert. denied, 357 N.C. 168, 581 S.E.2d 442 (2003) (quoting State v. Jackson, 302 N.C. 101, 104, 273 S.E.2d 666, 669 (1981)). The defendant bears the burden of demonstrating he is incompetent. Id. If the trial court\u2019s findings of fact are supported by competent evidence, they are deemed conclusive on appeal. Id. Furthermore, the trial court\u2019s decision that defendant was competent to stand trial will not be overturned, absent a showing that the trial judge abused his discretion. Id. at 698, 568 S.E.2d at 279. Evidence that a defendant suffers from mental retardation is not conclusive on the issue of competency. See id. at 697, 568 S.E.2d at 278. A defendant need not be \u201cat the highest stage of mental alertness to be competent to be tried.\u201d Id. at 697, 568 S.E.2d at 279 (citing State v. Shytle, 323 N.C. 684, 689, 374 S.E.2d 573, 575 (1989).\nDr. Robert Rollins, the Director of Forensic Psychiatry at Dorothea Dix Hospital, and a board certified expert in the field of forensic psychiatry, testified on behalf of the State. After interviewing defendant on three separate occasions and reviewing his records and test scores, Dr. Rollins concluded defendant was competent to stand trial. Dr. Rollins opined that although defendant suffered from \u201cborderline intellectual functioning,\u201d and found it difficult to cope with the stress of the legal process, he was nevertheless able to understand the nature and object of the proceedings against him. He further concluded that with proper support, defendant was \u201ccertainly . . . able to cooperate with his attorneys\u201d and assist in his own defense, although his attorneys might need to assign him very specific tasks and he would need additional time to complete the tasks given.\nDr. Mark Worthen testified for defendant as an expert in clinical and forensic psychology. Dr. Worthen testified defendant was not competent to stand trial based upon several factors. He stated that defendant\u2019s mental retardation, coupled with his inability to deal with stress, would interfere with his ability to aid his attorneys with his defense. Dr. Worthen gave several recommendations, which he believed would improve defendant\u2019s competence if implemented. Dr. Rollins agreed that Dr. Worthen\u2019s recommendations would help, but stated it was unnecessary that they be implemented before the trial could proceed. Despite Dr. Worthen\u2019s conclusion that defendant was unable to assist in his defense, he acknowledged defendant had at least a rudimentary understanding that he was on trial for murder and was facing life in prison or the death penalty. He testified that defendant trusted his attorneys and that defendant \u201cseemed to understand at least to some extent, the importance of working in a collaborative manner with [his attorneys].\u201d On cross-examination, Dr. Worthen testified as to defendant\u2019s responses to questions posed as part of the CAST-MR test, which is administered to determine competency of persons with mental retardation. The trial court found that defendant\u2019s answers to the questions indicated he understood the events surrounding the shooting and murder charge.\nAfter hearing this evidence, the trial court found defendant was competent to stand trial. The court declined to postpone the trial in order to implement some of Dr. Worthen\u2019s recommendations, but did modify the manner in which the trial was conducted to allow defendant more frequent breaks and longer breaks following the testimony of each witness so that defendant\u2019s attorneys could consult with defendant regarding witness testimony, explain anything he did not understand, and to solicit questions or relevant information from him.\nThere was sufficient evidence from which the trial judge could find that defendant was competent to stand trial. In defendant\u2019s answers to the CAST-MR test, he stated he was arrested for shooting Evans, he recited when and where the shooting occurred, he stated that he knew the charges against him were serious and that if convicted he faced life in prison or the death penalty. Dr. Rollins also gave his opinion that defendant\u2019s competency as it related to his ability to stand trial was not dependent upon implementation of Dr. Worthen\u2019s recommendations. The trial court found: (1) defendant was able to understand the nature and object of the proceedings against him; (2) he comprehended his situation in regard to the trial; and (3) defendant had the ability to assist in his defense in a rational and reasonable manner. These findings were supported by the evidence, which in turn supported the trial court\u2019s conclusion that defendant was competent to stand trial under the test set forth in N.C. Gen. Stat. \u00a7 15A-1001(a). We discern no abuse of discretion by the trial court in concluding that defendant was competent to stand trial. This assignment of error is without merit.\nDefendant further argues that the trial court erred in denying his motion to continue, which he made immediately following the trial court\u2019s ruling that he was competent to stand trial.\nA motion for a continuance is addressed to the sound discretion of the trial court and will not be overturned absent an abuse of discretion. State v. Boggess, 358 N.C. 676, 685, 600 S.E.2d 453, 459 (2004). After careful review of the trial court\u2019s ruling at the competency hearing, we discern no abuse of discretion. This argument is without merit.\nIn defendant\u2019s second assignment of error he contends the trial court\u2019s instructions on the element of deliberation were incorrect and lessened the State\u2019s burden to show this element of first-degree murder. We disagree.\nIn its initial charge to the jury, the trial court instructed the jury in accordance with the pattern jury instructions on the crimes of first-degree murder, second-degree murder, and on diminished capacity. At the jury charge conference, defense counsel requested the court give additional instructions on diminished capacity from State v. Buchanan, 287 N.C. 408, 215 S.E.2d 80 (1975). The trial court declined to give the requested instructions. During its deliberations, the jury requested the \u201c5 components of first-degree murder,\u201d and that they be in writing for them to review. The trial judge reinstructed the jury on the elements of first-degree murder and directed a written copy of those elements be given to the jury. Subsequently, the jury requested \u201ca legal interpretation\u201d of deliberation, one of the elements of first-degree murder. They also requested an explanation of \u201ccool state of mind\u201d in relation to \u201ctotal absence of passion or emotion.\u201d The trial court conducted a conference with counsel outside of the presence of the jury. The judge informed counsel it was going to give an instruction on deliberation consisting of language drawn directly from the Supreme Court case of State v. Ruof, 296 N.C. 623, 252 S.E.2d 720 (1979). Defense counsel objected, stating \u201cI would ask that you not read that part about satisfying revenge and all that stuff.\u201d Defense counsel further requested the court give the definition of deliberation as found in State v. Buchanan. The trial court declined to do so and instructed the jury from State v. Ruof as follows:\nDeliberation means an intention to kill executed by one while in a cool state of blood in furtherance of a fixed design to gratify a feeling of revenge or to accomplish some unlawful purpose, and not under the influence of a violent passion, suddenly aroused by some lawful or just cause, or legal provocation.\nCool state of blood, as used in connection with premeditation and deliberation, does not mean absence of passion and emotion, but means that an unlawful killing was deliberate and premeditated if executed with a fixed design to kill, notwithstanding that the Defendant was angry or in an emotional state at the time.\nAfter further deliberation, the jury requested a copy of the definition of deliberation. The trial court returned the jury to the courtroom and reinstructed it using the language from Ruof. After further deliberations, the jury found defendant guilty of first-degree murder.\nDefendant contends the supplemental instructions from State v. Ruof unconstitutionally reduced the State\u2019s burden of proof as to the element of deliberation. He asserts the instruction confused the level of provocation necessary to negate malice with that necessary to negate deliberation.\nWhile defense counsel did object to the trial court\u2019s supplemental instruction from Ruof, at no time did he assert as a basis for that objection the constitutional grounds now being argued to this Court. Rather, the basis of his objection was simply that he wanted the trial court to give an instruction on deliberation from Buchanan because he perceived it to be more favorably worded towards defendant than the language in Ruof. At no time did defendant assert the language from Ruof impermissibly lessened the State\u2019s burden of proof as to the element of deliberation. It is well settled that constitutional issues which are not raised and ruled upon in the trial court will not be reviewed for the first time on appeal. State v. Golphin, 352 N.C. 364, 403-04, 533 S.E.2d 168, 197 (2000). See also N.C. R. App. P. 10(b)(1). Furthermore, a defendant may not \u201c \u2018swap horses between courts to get a better mount\u2019 \u201d in the reviewing appellate court. State v. Sharpe, 344 N.C. 190, 194, 473 S.E.2d 3, 5 (1996) (quoting Weil v. Herring, 207 N.C. 6, 10, 175 S.E. 836, 838 (1934)).\nAssuming arguendo that this issue is properly before this Court, we conclude the trial court did not err in instructing the jury on the element of deliberation using language from State v. Ruof.\nOnce a jury retires to deliberate, the trial judge may give appropriate additional instructions in response to the jury\u2019s inquiries. N.C. Gen. Stat. \u00a7 15A-1234(a)(l) (2004). A trial court is not required to instruct the jury using the exact language counsel requests, as that is a matter left to the judge\u2019s discretion. State v. Lewis, 346 N.C. 141, 145, 484 S.E.2d 379, 381 (1997). \u201c \u2018As long as the trial court gives a requested instruction in substance, it is not error for a trial court to refuse to give a requested instruction verbatim, even if the request is based on language from [our Supreme] Court.\u2019 \u201d Id. at 146, 484 S.E.2d at 382 (citations omitted). In addition, where the trial court\u2019s instructions to the jury, taken as a whole, present the law fairly and clearly to the jury, no error will be found. State v. Nicholson, 355 N.C. 1, 59, 558 S.E.2d 109, 147 (2002).\nUpon consideration of all of the instructions given, we conclude the trial court properly instructed the jury on the element of deliberation. First, the initial instructions on deliberation were proper and comported with the pattern jury instructions on first-degree murder. Second, State v. Ruof is a correct statement of the law and the language contained in Ruof, which defines deliberation, has been cited with approval by our Supreme Court on several occasions. See Lewis, 346 N.C. at 146, 484 S.E.2d at 381-82; State v. Crawford, 344 N.C. 65, 74, 472 S.E.2d 920, 926 (1996).\nDefendant seeks to parse the words of the trial court\u2019s instruction from State v. Ruof solely in the light of his argument of diminished capacity. The evidence in the case demonstrated that defendant had a grudge against Evans arising out of a workplace dispute. The shooting was not the result of a suddenly aroused, violent passion, as defendant\u2019s last confrontation with Evans occurred two days prior to the shooting. Further, defendant did not kill Evans until several hours after he was discharged from his job and after he had kidnapped and assaulted Lowery. See State v. Watson, 338 N.C. 168, 177-78, 449 S.E.2d 694, 700 (1994) (holding the evidence failed to show the shooting was the result of a sudden and violent passion where he obtained a gun and placed it by his side in his truck before the defendant and victim ever quarreled, and the defendant had time to cool down because he returned to his truck following the argument, and only after that did he retrieve the gun, walk over to the victim, and shoot him), cert. denied, 514 U.S. 1071, 131 L. Ed. 2d 569 (1995), overruled on other grounds, State v. Richardson, 341 N.C. 585, 461 S.E.2d 724 (1995).\nAfter reviewing the trial court\u2019s instructions to the jury as a whole and construing them contextually, we conclude the charge as a whole was correct. This assignment of error is without merit.\nIn his third assignment of error, defendant contends the trial court erred by allowing the prosecution to peremptorily excuse an African-American prospective juror, Allison Young, on the basis of her race.\nThe Fourteenth Amendment to the United States Constitution, as well as Article 1, \u00a7 26 of the North Carolina Constitution, prohibit litigants from exercising peremptory juror challenges on the basis of race. Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69 (1986); State v. Grandell, 322 N.C. 487, 501, 369 S.E.2d 579, 587 (1988). The United States Supreme Court has set forth a three-step analysis for evaluating claims of racial discrimination in the use of peremptory challenges. Hernandez v. New York, 500 U.S. 352, 359, 114 L. Ed. 2d 395, 405 (1991).\nFirst, defendant must establish a prima facie case that the peremptory challenge was exercised on the basis of race. Id. Second, if such a showing is made, the burden shifts to the prosecutor to offer a racially neutral explanation to rebut defendant\u2019s prima facie case. Id. Third, the trial court must determine whether the defendant has proven purposeful discrimination. Id.\nState v. Cummings, 346 N.C. 291, 307-08, 488 S.E.2d 550, 560 (1997) (citing Hernandez, 500 U.S. at 359, 114 L. Ed. 2d at 405). The trial court is in the best position to judge the prosecutor\u2019s credibility, thus its determination will not be overruled absent clear error. Id. at 309, 488 S.E.2d at 561.\nWe need not address the first step in this analysis because once a prosecutor offers a race-neutral reason for the peremptory challenge, and the trial court subsequently rules on whether there was intentional discrimination of a juror based on their race, \u201cthe preliminary issue of whether the defendant had made a prima facie showing becomes moot.\u201d Hernandez, 500 U.S. at 359, 114 L. Ed. 2d at 405.\nTo rebut a prima facie case of discrimination, the prosecution must \u201c \u2018articulate legitimate reasons which are clear and reasonably specific and related to the particular case to be tried which give a neutral explanation for challenging jurors of the cognizable group.\u2019 \u201d Cummings, 346 N.C. at 308-09, 488 S.E.2d at 560 (citations omitted). At this stage, the issue is the facial validity of the prosecutor\u2019s explanation, and absent a discriminatory intent, which is inherent in the reason, the explanation given will be deemed race-neutral. State v. Hardy, 353 N.C. 122, 128, 540 S.E.2d 334, 340 (2000).\nThe State articulated two reasons for the exercise of this peremptory challenge. First, the prosecutor stated that Young expressed hesitancy concerning her ability to impose the death penalty. When the prosecutor inquired whether any of the jurors had any feeling about the death penalty which would impair their ability to perform the duty of a juror, Young responded that she was \u201cagainst killing whether it be legal or illegally.\u201d She further explained that her opposition was based on religious, moral, and philosophical beliefs she had held since childhood. Hesitancy on death penalty questions is a race-neutral reason for excusing a juror. Cummings, 346 N.C. at 310, 488 S.E.2d at 561; State v. Best, 342 N.C. 502, 512-13, 467 S.E.2d 45, 52 (1996).\nDefendant contends Young was not hesitant in giving her answer. Hesitancy can be manifested by demeanor as well as words. The trial judge was in the best position to resolve this issue, having heard and seen the responses of the prospective juror, including her facial expressions, tone of voice, reactions, and other nuances that are not subject to translation when reviewing a cold record on appeal. See State v. Smith, 328 N.C. 99, 127, 400 S.E.2d 712, 727-28 (1991).\nThe second reason the prosecutor gave for excusing Young was that her brother had previously been convicted of armed robbery. The criminal conviction of a potential juror\u2019s relative has been recognized as a race-neutral reason for the exclusion of that juror by peremptory challenge. See United States v. Johnson, 941 F.2d 1102, 1109-10 (10th Cir. 1991); United States v. Hughes, 911 F.2d 113, 114 (8th Cir. 1990). For this reason, we afford great deference to the trial court\u2019s ruling.\nDefendant argues the State accepted white jurors who gave similar responses and this demonstrates the State\u2019s discriminatory intent. Our Supreme Court rejected such an approach, stating that just because some of the remarks made by the stricken juror have also been made by other potential jurors the prosecutor did not challenge, does not require a finding that the reason given by the State was pre-textual. State v. Porter, 326 N.C. 489, 501, 391 S.E.2d 144, 153 (1990). This is so because \u201c \u2018[a] characteristic deemed to be unfavorable in one prospective juror, and hence grounds for a peremptory challenge, may, in a second prospective juror, be outweighed by other, favorable characteristics.\u2019 \u201d Id. (citations omitted).\nThe trial court concluded the State had not engaged in the \u201cexercise of [a] peremptory challenge in a discriminatory fashion based on race.\u201d In support of its conclusion, the trial court found that: (1) at the time defendant raised the Batson challenge, the State had used five peremptory challenges and none of those were against African-Americans; (2) only the defense had peremptorily excused an African-American; and (3) one-fourth of the jury seated at the time of the challenge was African-American. In light of the principles stated above and the additional findings of the trial court, the trial court\u2019s determination that there was no purposeful discrimination in the challenge of prospective juror Young was not erroneous. This assignment of error is without merit.\nIn his fourth assignment of error, defendant contends the trial court erred in allowing Robin Lowery, a lay witness, to testify that defendant was not mentally retarded.\nRule 701 of the Rules of Evidence permits lay witness opinion if it is \u201c(a) rationally based on the perception of the witness and (b) helpful to a clear understanding of [her] testimony or the determination of a fact in issue.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 701 (2004). Our Supreme Court has held that \u201cthe mental condition of another is an appropriate subject for lay opinion.\u201d State v. Bond, 345 N.C. 1, 31, 478 S.E.2d 163, 179 (1996). Thus, it is proper for a lay witness to testify as to an individual\u2019s mental condition when they have had the opportunity to observe that person. Id.\nAt trial, the following relevant exchange occurred:\nQ. In terms of his mental abilities, how did the Defendant appear to you?\n[Defense Counsel]: Well, objection as to how he appeared.\nCourt: Overruled.\nA. He was fine. I mean we functioned on a day-to day basis. He basically had the say over where he went and what he had to do and what he had to wear. I mean, you know, he didn\u2019t appear to be, you know, anything wrong. He would act a certain way around different people and he was kind of quiet, but when we was together, you know, he was a different person. I mean, you know, he told me what to do and, you know, we fussed and fight, stuff like that, but he wasn\u2019t mentally retarded.\nRobin Lowery had ample opportunity to observe defendant and form an opinion as to his mental condition. She had lived with defendant, saw him on a daily basis, and had the opportunity to observe him in various situations. This testimony was relevant as to whether defendant had the necessary mens rea for first-degree murder and helpful to a clear understanding of a fact in issue. Even though Lowery testified that defendant was not mentally retarded, when read in context, it demonstrates she was not giving an expert opinion. Rather, she apparently used the phrase \u201cmentally retarded\u201d to describe defendant\u2019s ability to function on a daily basis in shorthand form. See State v. Goss, 293 N.C. 147, 154, 235 S.E.2d 844, 849 (1977) (holding witness\u2019s use of the term \u201crape\u201d did not constitute an opinion on a question of law, as it was merely a \u201cconvenient shorthand term, amply defined by the balance of her testimony\u201d); State v. Chambers, 52 N.C. App. 713, 718, 280 S.E.2d 175, 178 (1981). Furthermore, it is clear the State was not attempting to elicit expert testimony from Lowery regarding defendant\u2019s mental retardation. Thus, the trial court did not err in permitting Lowery to give her opinion as to defendant\u2019s mental capabilities. This assignment of error is without merit.\nIn his fifth and final assignment of error, defendant contends the indictment charging defendant with first-degree murder was invalid because it did not allege all the elements of the crime charged.\nOur Supreme Court has upheld short-form indictments for murder as constitutional. State v. Hunt, 357 N.C. 257, 272, 582 S.E.2d 593, 603 (2003). The indictment in this case is sufficient as it meets the requirements under N.C. Gen. Stat. \u00a7 15-144. It states: \u201cThe jurors for the state upon their oath present that on or about the 17th day of March, 1994, in Mecklenburg County, Robert Lewis McClain did unlawfully, wilfully, and feloniously and of malice aforethought kill and murder David D. Evans.\u201d This assignment of error is without merit.\nFor the reasons discussed herein, we find defendant received a fair trial, free of error.\nNO ERROR.\nJudge HUDSON concurs.\nJudge WYNN concurs in result in a separate opinion.", "type": "majority", "author": "STEELMAN, Judge." }, { "text": "WYNN, Judge\nconcurring.\nI join in the majority opinion except on the issue of whether the trial court properly allowed that part of Robin Lowery\u2019s lay testimony expressing the opinion that Defendant \u201cwasn\u2019t mentally retarded.\u201d\nAs the majority notes, at trial, Lowery stated:\nHe was fine. I mean, we functioned on a day-to-day basis. He basically had the say over where he went and what he had to do and what he had to wear. I mean, you know, he didn\u2019t appear to be, you know, anything wrong. He would act a certain way around different people and he was kind of quiet, but when we was together, you know, he was a different person. I mean, you know, he told me what to do and, you know, we fussed and fight, stuff like that, but he wasn\u2019t mentally retarded.\nUnder Rule 701 of the Rules of Evidence, lay witness opinion testimony is admissible if it is: \u201c(a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.\u201d N.C. Gen. Stat. \u00a7 8C-701 (2004); State v. Braxton, 352 N.C. 158, 206, 531 S.E.2d 428, 456 (2000) (same).\nThis rule permits evidence which can be characterized as a \u201cshorthand statement of fact.\u201d This Court has long held that a witness may state the \u201cinstantaneous conclusions of the mind as to the appearance, condition, or mental or physical state of persons, animals, and things, derived from observation of a variety of facts presented to the senses at one and the same time.\u201d Such statements are usually referred to as shorthand statements of facts.\nId. at 187, 531 S.E.2d at 445 (quotation omitted).\nSeveral North Carolina statutes have defined mental retardation as \u201csignificantly subaverage general intellectual functioning existing concurrently with\u201d other deficits and limitations. See, e.g., N.C. Gen. Stat. \u00a7 1220-3(23) (2004); N.C. Gen. Stat. \u00a7 16A-2005(a)(1) (2004). This Court has previously found that this definition \u201crepresents the plain meaning of the term \u2018mental retardation[.]\u2019 \u201d In re LaRue, 113 N.C. App. 807, 811, 440 S.E.2d 301, 304 (1994). \u201c[Significantly subav-erage general intellectual functioning\u201d has been defined as \u201c[a]n intelligence quotient of 70 or below.\u201d N.C. Gen. Stat. \u00a7 15A-2005(a)(1).\nHere, Lowery testified as to her observations of how Defendant functioned on a daily basis and how he acted in certain situations. Such testimony was clearly admissible under Rule 701. However, Lowery also stated that Defendant \u201cwasn\u2019t mentally retarded[,]\u201d i.e., that Defendant did not have a significantly subaverage general intellectual functioning. I do not believe that Lowery\u2019s statement that Defendant was not mentally retarded could \u201crationally [be] based on the perception of the witness\u201d and therefore believe that statement constituted improper lay opinion testimony.\nAs the majority notes, and as made clear in the Braxton citation above, \u201cthe mental condition of another is an appropriate subject for lay opinion.\u201d State v. Bond, 345 N.C. 1, 31, 478 S.E.2d 163, 179 (1996). In Bond, testimony of a police officer that he did not think the defendant was mentally retarded was held admissible. Notably, however, in Bond, the testimony was allowed into evidence at a sentencing proceeding, where, as the Bond court explicitly noted, the Rules of Evidence do not apply but are merely guidance. Moreover, in support of the proposition that a person\u2019s mental condition is a proper subject for lay opinion, the Bond court cited State v. Strickland, 321 N.C. 31, 361 S.E.2d 882 (1987), in which our Supreme Court stated that \u201c \u2018[a] lay witness, from observation, may form an opinion as to one\u2019s mental condition and testify thereto before the jury.\u2019 \u201d Id. at 38, 361 S.E.2d at 886 (quoting State v. Moore, 268 N.C. 124, 127, 150 S.E.2d 47, 49 (1966)). However, in both Strickland and Moore, the lay opinions at issue went to whether the respective defendant was or was not \u201cin his right mind.\u201d There is a difference in kind between a person\u2019s sanity and a person\u2019s \u201csignificantly subaverage general intellectual functioning,\u201d or mental retardation, and the admissibility of lay testimony, as to the former does not indicate the admissibility of lay testimony as to the latter.\nWhile I believe the admission of Lowery\u2019s testimony that Defendant \u201cwasn\u2019t mentally retarded[]\u201d was error, that error was harmless. The record reflects that it was clear that Lowery was not an expert on mental retardation, and the State proffered expert testimony that Defendant was not mentally retarded and was capable of forming a plan and specific intent. Because the trial court\u2019s error was harmless, I concur in result with the majority.\n. It is also worth noting that Lowery\u2019s statement that Defendant was not mentally retarded directly contradicted the trial court\u2019s finding, albeit made subsequent to Defendant\u2019s trial, that \u201cthe Defendant has proven by a preponderance of the evidence that he is mentally retarded].]\u201d", "type": "concurrence", "author": "WYNN, Judge" } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Mary D. Winstead, for the State.", "Appellate Defender Staples Hughes, by Assistant Appellate Defender Anne M. Gomez, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ROBERT LEWIS McCLAIN\nNo. COA04-938\n(Filed 19 April 2005)\n1. Criminal Law\u2014 competency to stand trial \u2014 mental retardation\nThe trial court did not abuse its discretion in a first-degree murder case by determining that defendant was competent to stand trial under the test set forth in N.C.G.S. \u00a7 15A-1001(a), because: (1) evidence that a defendant suffers from mental retardation is not conclusive on the issue of competency; and (2) the evidence supported the trial court\u2019s findings that defendant was able to understand the nature and object of the proceedings against him, he comprehended his situation in regard to the trial, and defendant had the ability to assist in his defense in a rational and reasonable manner.\n2. Criminal Law\u2014 denial of motion to continue \u2014 abuse of discretion standard\nThe trial court did not abuse its discretion in a first-degree murder case by denying defendant\u2019s motion to continue made immediately following the trial court\u2019s ruling that he was competent to stand trial.\n3. Homicide\u2014 first-degree murder \u2014 instructions\u2014deliberation\nThe trial court did not err in a first-degree murder case by its supplemental instructions on the element of deliberation when it used the language of State v. Ruof, 296 N.C. 623 (1979), because: (1) the initial instructions on deliberation were proper and comported with the pattern jury instructions on first-degree murder; (2) State v. Ruof is a correct statement of the law and the language contained in Ruof, which defines deliberation, has been cited with approval by our Supreme Court on several occasions; and (3) a review of the trial court\u2019s instructions to the jury as a whole and construing them contextually reveals that the charge as a whole was correct.\n4. Jury\u2014 peremptory challenge \u2014 Batson challenge \u2014 race neutral reasons\nThe trial court did not err in a first-degree murder case by allowing the prosecution to peremptorily excuse an African-American prospective juror because: (1) hesitancy on death penalty questions is a race-neutral reason for excusing a juror, and the trial court was in the best position to resolve this issue since it heard and saw the responses of the prospective juror including her facial expressions, tone of voice, reactions, and other nuances that are not subject to translation when reviewing a cold record on appeal; (2) the prospective victim\u2019s brother had previously been convicted of armed robbery, and the criminal conviction of a potential juror\u2019s relative has been recognized as a race-neutral reason for the exclusion of that juror by peremptory challenge; (3) just because some of the remarks made by the stricken juror have also been made by other potential jurors the prosecutor did not challenge does not require a finding that the reason given by the State was pretextual since a characteristic deemed to be unfavorable by one prospective juror may in a second prospective juror be outweighed by other favorable characteristics; and (4) the trial court found that at the time defendant raised the Batson challenge, the State had used five peremptory challenges and none of those were against African-Americans, only the defense had peremptorily excused an African-American, and one-fourth of the jury seated at the time of the challenge was African-American.\n5. Evidence\u2014 lay opinion testimony \u2014 mental retardation\nThe trial court did not err in a first-degree murder case by allowing a lay witness to testify that defendant was not mentally retarded, because: (1) N.C.G.S. \u00a7 8C-1, Rule 701 permits lay witness opinion if it is rationally based on the perception of the witness and helpful to a clear understanding of her testimony or the determination of a fact in issue; (2) our Supreme Court has held that the mental condition of another is an appropriate subject for lay opinion; (3) the witness had ample opportunity to observe defendant and form an opinion as to his mental condition since she lived with defendant, saw him on a daily basis, and had the opportunity to observe him in various situations; (4) this testimony was relevant as to whether defendant had the necessary mens rea for first-degree murder and helpful to a clear understanding of a fact in issue; (5) even though the witness testified that defendant was not mentally retarded, when read in context, it demonstrates that she was not giving an expert opinion but was instead using the phrase to describe defendant\u2019s ability to function on a daily basis in shorthand form; and (6) the State was not attempting to elicit expert testimony from the witness regarding defendant\u2019s mental retardation.\n6. Homicide\u2014 first-degree murder \u2014 short-form indictment\u2014 constitutionality\nThe short-form indictment used to charge defendant with first-degree murder was constitutional.\nJudge Wynn concurring.\nAppeal by defendant from judgment entered 25 June 1999 by Judge Ronald K. Payne in Mecklenburg County Superior Court. Heard in the Court of Appeals 15 February 2005.\nAttorney General Roy Cooper, by Assistant Attorney General Mary D. Winstead, for the State.\nAppellate Defender Staples Hughes, by Assistant Appellate Defender Anne M. Gomez, for defendant-appellant." }, "file_name": "0657-01", "first_page_order": 687, "last_page_order": 703 }