{ "id": 9004257, "name": "STATE OF NORTH CAROLINA v. RICKY ANDREWS", "name_abbreviation": "State v. Andrews", "decision_date": "2005-05-03", "docket_number": "No. COA02-691", "first_page": "68", "last_page": "78", "citations": [ { "type": "official", "cite": "170 N.C. App. 68" } ], "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": "297 S.E.2d 563", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "568", "parenthetical": "noting that the exercise of imperfect self-defense leaves defendant guilty of at least voluntary manslaughter" } ], "opinion_index": 0 }, { "cite": "307 N.C. 152", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561161 ], "year": 1982, "pin_cites": [ { "page": "159", "parenthetical": "noting that the exercise of imperfect self-defense leaves defendant guilty of at least voluntary manslaughter" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0152-01" ] }, { "cite": "462 S.E.2d 492", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "499" } ], "opinion_index": 0 }, { "cite": "341 N.C. 658", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793180 ], "year": 1995, "pin_cites": [ { "page": "668" } ], "opinion_index": 0, "case_paths": [ "/nc/341/0658-01" ] }, { "cite": "459 S.E.2d 238", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "245" } ], "opinion_index": 0 }, { "cite": "341 N.C. 79", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793065 ], "year": 1995, "pin_cites": [ { "page": "90" } ], "opinion_index": 0, "case_paths": [ "/nc/341/0079-01" ] }, { "cite": "417 S.E.2d 244", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "246-47" } ], "opinion_index": 0 }, { "cite": "331 N.C. 731", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2496980 ], "year": 1992, "pin_cites": [ { "page": "734" } ], "opinion_index": 0, "case_paths": [ "/nc/331/0731-01" ] }, { "cite": "342 S.E.2d 905", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "316 N.C. 384", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4703105, 4694539, 4696367, 4704373, 4705269 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/316/0384-02", "/nc/316/0384-04", "/nc/316/0384-03", "/nc/316/0384-05", "/nc/316/0384-01" ] }, { "cite": "336 S.E.2d 684", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "688" } ], "opinion_index": 0 }, { "cite": "78 N.C. App. 49", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519489 ], "year": 1985, "pin_cites": [ { "page": "54" } ], "opinion_index": 0, "case_paths": [ "/nc-app/78/0049-01" ] }, { "cite": "154 L. Ed. 2d 165", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2002, "opinion_index": 0 }, { "cite": "537 U.S. 896", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9242368, 9242593, 9242307, 9242631, 9242668, 9242413, 9242511, 9242287, 9242481, 9242355, 9242453, 9242393, 9242330, 9242558, 9242431 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/us/537/0896-05", "/us/537/0896-13", "/us/537/0896-02", "/us/537/0896-14", "/us/537/0896-15", "/us/537/0896-07", "/us/537/0896-11", "/us/537/0896-01", "/us/537/0896-10", "/us/537/0896-04", "/us/537/0896-09", "/us/537/0896-06", "/us/537/0896-03", "/us/537/0896-12", "/us/537/0896-08" ] }, { "cite": "558 S.E.2d 463", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "488" } ], "opinion_index": 0 }, { "cite": "355 N.C. 73", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220002 ], "year": 2002, "pin_cites": [ { "page": "112" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0073-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "687" } ], "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "160 L. Ed. 2d 137", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2004, "pin_cites": [ { "parenthetical": "internal citation omitted" } ], "opinion_index": 0 }, { "cite": "520 S.E.2d 545", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "560" } ], "opinion_index": 0 }, { "cite": "351 N.C. 48", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155790 ], "year": 1999, "pin_cites": [ { "page": "74" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0048-01" ] }, { "cite": "608 S.E.2d 756", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2005, "pin_cites": [ { "page": "757" } ], "opinion_index": 0 }, { "cite": "359 N.C. 312", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3802538 ], "year": 2005, "pin_cites": [ { "page": "313" } ], "opinion_index": 0, "case_paths": [ "/nc/359/0312-01" ] }, { "cite": "153 L. Ed. 2d 851", "category": "reporters:federal", "reporter": "L. Ed. 2d", "weight": 2, "year": 2002, "pin_cites": [ { "parenthetical": "internal citations omitted" } ], "opinion_index": 0 }, { "cite": "536 U.S. 967", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1255137, 1254755, 1254692, 1255267, 1254630, 1254665, 1255371, 1254894, 1254992, 1254929, 1255349, 1254684, 1254399 ], "year": 2002, "pin_cites": [ { "parenthetical": "internal citations omitted" } ], "opinion_index": 0, "case_paths": [ "/us/536/0967-04", "/us/536/0967-05", "/us/536/0967-02", "/us/536/0967-03", "/us/536/0967-11", "/us/536/0967-06", "/us/536/0967-08", "/us/536/0967-01", "/us/536/0967-12", "/us/536/0967-09", "/us/536/0967-13", "/us/536/0967-07", "/us/536/0967-10" ] }, { "cite": "556 S.E.2d 316", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "323" } ], "opinion_index": 0 }, { "cite": "147 N.C. App. 386", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9379729 ], "year": 2001, "pin_cites": [ { "page": "397" } ], "opinion_index": 0, "case_paths": [ "/nc-app/147/0386-01" ] }, { "cite": "434 S.E.2d 840", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "851" } ], "opinion_index": 0 }, { "cite": "334 N.C. 467", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2528837 ], "year": 1993, "pin_cites": [ { "page": "486" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0467-01" ] }, { "cite": "340 S.E.2d 383", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "387", "parenthetical": "distributing copies of the handwritten statement to each juror did not prejudice defendant" } ], "opinion_index": 0 }, { "cite": "315 N.C. 556", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4715095 ], "year": 1986, "pin_cites": [ { "page": "562", "parenthetical": "distributing copies of the handwritten statement to each juror did not prejudice defendant" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0556-01" ] }, { "cite": "564 S.E.2d 231", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "parenthetical": "no error to admit defendant's confession after concluding it was voluntary" } ], "opinion_index": 0 }, { "cite": "355 N.C. 499", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 219937, 220179, 220150, 219897, 219898 ], "year": 2002, "pin_cites": [ { "parenthetical": "no error to admit defendant's confession after concluding it was voluntary" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0499-03", "/nc/355/0499-02", "/nc/355/0499-01", "/nc/355/0499-05", "/nc/355/0499-04" ] }, { "cite": "560 S.E.2d 568", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "573", "parenthetical": "no error to admit defendant's confession after concluding it was voluntary" } ], "opinion_index": 0 }, { "cite": "149 N.C. App. 276", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9127377 ], "year": 2002, "pin_cites": [ { "page": "283", "parenthetical": "no error to admit defendant's confession after concluding it was voluntary" } ], "opinion_index": 0, "case_paths": [ "/nc-app/149/0276-01" ] }, { "cite": "527 S.E.2d 644", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "651" } ], "opinion_index": 0 }, { "cite": "351 N.C. 413", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155865 ], "year": 2000, "pin_cites": [ { "page": "423" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0413-01" ] }, { "cite": "453 S.E.2d 165", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "339 N.C. 606", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2558570 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/339/0606-01" ] }, { "cite": "436 S.E.2d 163", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "167" } ], "opinion_index": 0 }, { "cite": "112 N.C. App. 390", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521711 ], "year": 1993, "pin_cites": [ { "page": "396" } ], "opinion_index": 0, "case_paths": [ "/nc-app/112/0390-01" ] }, { "cite": "214 S.E.2d 742", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "752", "parenthetical": "finding a 19-year-old defendant with an I.Q. of 55 capable of waiving his rights" } ], "opinion_index": 0 }, { "cite": "287 N.C. 303", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562627 ], "year": 1975, "pin_cites": [ { "page": "319", "parenthetical": "finding a 19-year-old defendant with an I.Q. of 55 capable of waiving his rights" } ], "opinion_index": 0, "case_paths": [ "/nc/287/0303-01" ] }, { "cite": "305 S.E.2d 685", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "690" } ], "opinion_index": 0 }, { "cite": "309 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4762828 ], "year": 1983, "pin_cites": [ { "page": "8" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0001-01" ] }, { "cite": "570 S.E.2d 128", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "135", "parenthetical": "quoting State v. Fincher, 309 N.C. 1, 8, 305 S.E.2d 685, 690 (1983)" } ], "opinion_index": 0 }, { "cite": "153 N.C. App. 358", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9249972 ], "year": 2002, "pin_cites": [ { "page": "366", "parenthetical": "quoting State v. Fincher, 309 N.C. 1, 8, 305 S.E.2d 685, 690 (1983)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/153/0358-01" ] }, { "cite": "342 S.E.2d 811", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "820" }, { "page": "821", "parenthetical": "mildly mentally retarded 18-year-old defendant with a mental age .of ten or eleven gave voluntary confession" } ], "opinion_index": 0 }, { "cite": "316 N.C. 558", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4700785 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "573" }, { "page": "575" } ], "opinion_index": 0, "case_paths": [ "/nc/316/0558-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-17", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 }, { "cite": "148 L. Ed. 2d 797", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2001, "opinion_index": 0 }, { "cite": "531 U.S. 1130", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9725312, 9726080, 9725538, 9725636, 9725125, 9726440, 9726185, 9725963, 9725742, 9726553, 9726323, 9725849, 9725435, 9725213 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/us/531/1130-03", "/us/531/1130-10", "/us/531/1130-05", "/us/531/1130-06", "/us/531/1130-01", "/us/531/1130-13", "/us/531/1130-11", "/us/531/1130-09", "/us/531/1130-07", "/us/531/1130-14", "/us/531/1130-12", "/us/531/1130-08", "/us/531/1130-04", "/us/531/1130-02" ] }, { "cite": "531 S.E.2d 428", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "437" } ], "opinion_index": 0 }, { "cite": "352 N.C. 158", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 685078 ], "year": 2000, "pin_cites": [ { "page": "174" } ], "opinion_index": 0, "case_paths": [ "/nc/352/0158-01" ] }, { "cite": "530 U.S. 466", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9413911 ], "weight": 2, "year": 2000, "opinion_index": 0, "case_paths": [ "/us/530/0466-01" ] }, { "cite": "526 U.S. 227", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11133049 ], "weight": 2, "year": 1999, "opinion_index": 0, "case_paths": [ "/us/526/0227-01" ] } ], "analysis": { "cardinality": 1014, "char_count": 24338, "ocr_confidence": 0.754, "pagerank": { "raw": 4.8953911903617876e-08, "percentile": 0.306819046206941 }, "sha256": "8ef30903079514057be8cb3355109b355f357d4dbc7c0fc8f5e0fff59aa37511", "simhash": "1:27628422c7237347", "word_count": 3902 }, "last_updated": "2023-07-14T16:44:47.676310+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUNTER and CALABRIA concur." ], "parties": [ "STATE OF NORTH CAROLINA v. RICKY ANDREWS" ], "opinions": [ { "text": "MARTIN, Chief Judge.\nDefendant was charged with first-degree murder, robbery with a dangerous weapon, and conspiracy to commit robbery with a dangerous weapon. At trial, the evidence tended to show that on 15 November 1999, defendant and Lynn Downy had discussed committing robbery while they were drinking and smoking marijuana. They went to Winshell Harris\u2019s (Harris) house, to purchase additional marijuana. When they arrived, Harris was not at home, but his brother, Michael Wilson (Wilson), told them to return in a half an hour. Upon their return, Wilson directed them to a side entrance, in order for him to visit with his friend in the living room, while Harris visited defendant and Downy in the kitchen. Wilson testified that at one point he entered the kitchen to get a glass of water and the conversation between Harris, defendant and Downy stopped. He also stated that he noticed Harris sitting at the table, which had Harris\u2019s nine millimeter gun and $800 on it.\nDowny testified that while they were waiting on Harris\u2019s marijuana supplier, other customers came and went. He did not notice either Harris or defendant with a gun, nor did he see money on the table. He stated that after waiting for five minutes or so, Harris informed them the supplier was unable to come, so Downy decided to leave. A minute or two after leaving he heard shots, but he did not look back. Downy also testified that he asked defendant if he had shot Harris, but that defendant swore he did not.\nWilson testified that he heard five shots and, before he could enter the kitchen, Harris entered the living room, bleeding profusely. Harris told Wilson that \u201cLittle Rick\u201d, whom Wilson knew as defendant, had shot him. Wilson helped his brother to a chair and returned to the kitchen to see if defendant and Downy were still there. The back door was open and the money and gun were gone from the table.\nWhen Officer L.C. Peele arrived on the scene, he observed Harris bleeding, and Harris informed him he had been shot. Peele accompanied Harris to the hospital, noting that Harris was conscious and alert, but Harris subsequently suffered cardiac arrest and died.\nBased on the statements made by Wilson, defendant was arrested and his residence was searched. No evidence of the crime was found on his person or at his residence. While defendant was in the patrol car, Detective Michael Lewis read him his Miranda rights. He did not assert his rights and agreed to speak with Lewis. Lewis testified that defendant seem\u00e9d agitated and that while there was a moderate odor of alcohol, defendant did not have difficulty speaking or walking, glassy eyes, or slurred speech. Initially, defendant denied involvement in the shooting, but on further questioning at the police station, he began crying and confessed that he and Harris were friends and that \u201cit was not supposed to happen like that.\u201d\nDefendant\u2019s statement explained that he and Downy were together when Downy said he needed money, and that Harris had some, so they planned a robbery and walked to Harris\u2019s house. According to the statement, Downy planned to trade his .45 caliber handgun for half an ounce of cocaine. When meeting with Harris, Harris handed Downy a nine millimeter pistol to look at, and Downy grabbed the gun and the cash from the table. Defendant stated that he thought Harris was reaching for a gun, so he pulled his .38 revolver from his pants and shot at Harris. According to this statement, defendant hid his gun under some leaves behind a shed at 406 Carolina Avenue, burned the clothes he was wearing, and Downy kept Harris\u2019s pistol and the money from the table. A .38 caliber revolver was found at the Carolina Avenue location.\nAt defendant\u2019s request, Lewis wrote out this statement and went over it line by line with him. This statement was read to the jury at trial, and enlarged on a poster entitled, \u201cConfession of Ricky Andrews.\u201d On cross-examination, Lewis admitted that he did not write down every word that defendant said and did write down words defendant did not actually say.\nCrime scene investigator Sandra Kay Rose testified that she recovered one projectile from the wall of Harris\u2019s home, and several from his body. Forensic firearms expert Carol Ann Marshburn testified that the projectile recovered from the residence and two of the projectiles recovered from Harris were fired from the .38 caliber revolver discovered at the location indicated in defendant\u2019s statement. The two other projectiles came from the same class type of firearm as defendant\u2019s but lacked \u201cenough individual characteristics\u201d to be positively identified as being from defendant\u2019s revolver.\nDefendant presented a court-appointed expert witness, Dr. Gary H. Bachara, who testified that the defendant had an I.Q. of 61, equivalent to the mental age of an eight-year-old. He explained that his test results were consistent with defendant\u2019s school records. Dr. Bachara opined that people with I.Q.\u2019s of 61 are impulsive and lack an ability to form the intent to plan \u201ceven hours in the future.\u201d He also stated that he did not believe defendant would understand some of the words used in his written statement.\nThe jury convicted defendant of first-degree felony murder, conspiracy to commit robbery, and robbery with a firearm. Defendant was sentenced to life imprisonment without parole for the first-degree murder and conspiracy to commit robbery offenses, and the judgment on the robbery with firearm was arrested. From these judgments, defendant appealed.\nOn appeal, by order dated 8 July 2003, this Court remanded for \u201can evidentiary hearing concerning the admissibility of the statements made by defendant to police following his arrest.\u201d This evi-dentiary hearing was held on 23 September 2004, after which the court found facts and concluded:\n1. That there was no offer of hope, reward or inducement to the defendant to make a statement.\n2. That there was no threat or suggestive violence or show of violence to persuade or induce the defendant to make a statement.\n3. That any statement made by the defendant to Detective Mike Lewis of the Rocky Mount Police Department on December 16, 1999 was made voluntarily, knowingly and understandingly.\n4. That the defendant was in full understanding of his constitutional rights to remain silent and rights to counsel.\n5. That he purposely, freely, knowingly and voluntarily waived each of those rights and, thereupon, made a statement to Detective Lewis.\n6. That the warning given by Detective Lewis was in all respects in compliance with the requirements of \u201cMiranda.\u201d\n7. That the defendant\u2019s admission was voluntarily and made understandingly and without any evidence of coercion.\n8. That Dr. Bachara never said the defendant could not understand his rights.\n9. That defendant had the capacity to knowingly and understandingly waive his rights under Miranda.\nDefendant argues it was: 1) error to try defendant and sentence him for felony murder based on a short form indictment; 2) a violation of defendant\u2019s Miranda rights to admit defendant\u2019s statement to police; 3) error to admit an enlargement of this statement for illustrative purposes; 4) plain error for the trial court to fail to instruct the jury regarding diminished capacity to form specific intent necessary for the underlying felony of robbery or conspiracy to commit robbery; 5) a violation of defendant\u2019s right to effective assistance of counsel to fail to request these instructions; 6) error to instruct the jury \u201cthat the evidence tended to show the defendant confessed;\u201d and 7) error not to instruct on voluntary manslaughter based on imperfect self-defense. After careful consideration of his arguments, we hold defendant received a fair trial, free from prejudicial error.\nDefendant first argues that the short-form indictment does not allege all the elements of first-degree murder as is required by Jones v. United States, 526 U.S. 227, 143 L. Ed. 2d 311 (1999), and applied to state statutes in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435 (2000). Our Supreme Court has \u201cheld that the short-form indictment is sufficient to charge first-degree murder on the basis of any of the theories ... set forth in N.C.G.S. \u00a7 14-17.\u201d State v. Braxton, 352 N.C. 158, 174, 531 S.E.2d 428, 437 (2000), cert. denied, 531 U.S. 1130, 148 L. Ed. 2d 797 (2001). N.C. Gen. Stat. \u00a7 14-17 defines first and second degree murder, including murder \u201ccommitted in the perpetration or attempted perpetration of any . . . robbery ... or other felony committed or attempted with the use of a deadly weapon.\u201d N.C. Gen. Stat. \u00a7 14-17 (2003). The indictment in this case alleged first-degree murder and referenced section 14-17; accordingly, this assignment of error is overruled.\nIn defendant\u2019s second argument he maintains the trial court erred in denying his motion to suppress his statement to the police because it was obtained in violation of his Miranda rights. On appeal the findings of fact made by a trial court \u201cfollowing a voir dire hearing on the voluntariness of a confession are conclusive\u201d as long they are supported by competent evidence. State v. Massey, 316 N.C. 558, 573, 342 S.E.2d 811, 820 (1986). Our Supreme Court has \u201cconsistently held that a defendant\u2019s subnormal mental capacity is a factor to be considered when determining whether a knowing and intelligent waiver of rights has been made\u201d but lack of intelligence alone does not \u201crender an in-custody statement incompetent if it is in all other respects voluntary and understandingly made.\u201d State v. Jones, 153 N.C. App. 358, 366, 570 S.E.2d 128, 135 (2002) (quoting State v. Fincher, 309 N.C. 1, 8, 305 S.E.2d 685, 690 (1983)); see also Massey, 316 N.C. at 575, 342 S.E.2d at 821 (mildly mentally retarded 18-year-old defendant with a mental age .of ten or eleven gave voluntary confession); State v. Thompson, 287 N.C. 303, 319, 214 S.E.2d 742, 752 (1975) (finding a 19-year-old defendant with an I.Q. of 55 capable of waiving his rights). We examine \u201cthe totality of the circumstances, and in the case of mentally retarded defendants, we pay particular attention to the defendant\u2019s personal characteristics and the details of the interrogation.\u201d State v. Brown, 112 N.C. App. 390, 396, 436 S.E.2d 163, 167 (1993), aff\u2019d, 339 N.C. 606, 453 S.E.2d 165-66 (1995).\nAt the evidentiary hearing on this issue, the trial court reviewed the evidence and made findings examining the totality of the circumstances. The hearing included re-examinations of the arresting and questioning officer and the psychologist that examined the defendant. The court found that the warnings given by the officer complied with the requirements of Miranda and that defendant was not threatened, physically coerced, or offered a reward, and he did not appear to be under the influence of alcohol or drugs. At defendant\u2019s trial, during the initial voir dire on the motion to suppress, the trial court found that defendant indicated that he understood his rights; that during the interview at the police station, after about thirty minutes, the defendant \u201cbroke down\u201d and made a statement; and that he was not denied food, water or an opportunity to use the bathroom. The trial court also noted that defendant recounted details of his involvement in the shooting and had a prior record. These findings all support the conclusion that the statement was voluntarily given and that defendant knowingly waived his Miranda rights. Therefore it was not error for the trial court to admit defendant\u2019s confession, and this assignment of error is overruled.\nDefendant\u2019s third argument is that it was prejudicial error for the trial court to permit the State to display to the jury an enlarged image of his statement. Presentation of evidence is within the trial court\u2019s discretion and will not be disturbed on appeal absent an abuse of discretion. State v. Waddell, 351 N.C. 413, 423, 527 S.E.2d 644, 651 (2000). Because we have already concluded that the defendant\u2019s statement was admissible, it was not error for the trial court to permit the State to display the enlarged version for illustrative purposes. See State v. Thompson, 149 N.C. App. 276, 283, 560 S.E.2d 568, 573, disc. review denied, 355 N.C. 499, 564 S.E.2d 231 (2002) (no error to admit defendant\u2019s confession after concluding it was voluntary); see also State v. Harris, 315 N.C. 556, 562, 340 S.E.2d 383, 387 (1986) (distributing copies of the handwritten statement to each juror did not prejudice defendant). Accordingly, this assignment of error is overruled.\nDefendant\u2019s remaining arguments all relate to the trial court\u2019s instructions to the jury. He maintains that 1) it was plain error not to instruct on diminished capacity regarding the underlying robbery for felony murder or for conspiracy, and counsel\u2019s failure to request this instruction amounts to ineffective assistance; 2) the trial court erred when it instructed that the evidence tended to show defendant confessed; and 3) there was error in the trial court\u2019s failure to instruct on voluntary manslaughter based on a theory of imperfect self-defense. We will address each of these arguments in turn.\nAs an initial matter, we note that defendant did not request or propose any of these instructions at trial, and thus has not preserved his right to review. See N.C.R. App. P. 10(b)(2) (2004); State v. Gay, 334 N.C. 467, 486, 434 S.E.2d 840, 851 (1993). Therefore, we review using the plain error standard. Plain error is error that either amounts to the denial of a fundamental right or is \u201cso lacking in its elements that justice cannot have been done.\u201d State v. Carpenter, 147 N.C. App. 386, 397, 556 S.E.2d 316, 323 (2001), cert. denied, 536 U.S. 967, 153 L. Ed. 2d 851 (2002) (internal citations omitted). In order to prevail under the plain error analysis, the defendant must show 1) there was error, and 2) that absent the error, the jury would have reached a different result. Id.\nDefendant contends the jury\u2019s verdict finding defendant not guilty of first-degree murder by premeditation and deliberation indicates the jurors determined that defendant lacked sufficient mental capacity to form specific intent for either armed robbery or conspiracy to commit robbery. Had they been properly instructed by the trial court regarding diminished capacity in terms of these charges, defendant maintains the jury would have been unable to find the specific intent for those charges as well. We disagree.\nDefendant\u2019s arguments regarding instructions about the underlying robbery are not properly before us. Defendant\u2019s assignments of error do not plainly \u201cspecifically and distinctly\u201d allege plain error regarding the robbery charge. N.C.R. App. P. 10(c)(4) (2004); State v. Dennison, 359 N.C. 312, 313, 608 S.E.2d 756, 757 (2005). Therefore, we only examine the diminished capacity instruction in relationship to the conspiracy charge.\nReviewing for plain error, we conclude that defendant\u2019s evidence concerning his low I.Q., smoking marijuana, and sharing Hennessy over the course of the evening was not so overwhelming as to render the lack of a voluntary intoxication instruction prejudicial. It is \u201cwell established\u201d that a voluntary intoxication instruction is not required even where there is testimony that defendant consumed \u201cintoxicating beverages or controlled substances.\u201d State v. Cheek, 351 N.C. 48, 74, 520 S.E.2d 545, 560 (1999), cert. denied, -U.S. -, 160 L. Ed. 2d 137 (2004) (internal citation omitted). Moreover, there was testimony that defendant did not appear intoxicated. Finding defendant not guilty of first-degree murder based on premeditation and deliberation does not necessarily imply the jury concluded defendant had a diminished capacity to form any intent. Additionally, considering the defendant\u2019s confession, the testimony of Downy, and the victim\u2019s statement regarding the shooting and the forensic evidence, the jury had sufficient basis for its verdicts. We cannot say that had the jurors been given this instruction, they would have reached a different result. This assignment of error is overruled.\nDefendant further maintains that the failure of defense counsel to request this instruction constitutes ineffective assistance of counsel. We disagree. When raising a claim of ineffective assistance of counsel, a defendant has to satisfy the two-part test set forth in Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674 (1984) to show counsel\u2019s performance failed to meet an objective standard of reasonableness. State v. Gainey, 355 N.C. 73, 112, 558 S.E.2d 463, 488, cert. denied, 537 U.S. 896, 154 L. Ed. 2d 165 (2002). This burden requires showing that 1) counsel erred so seriously so as not to function as counsel and 2) the deficient performance deprived defendant of a fair trial. Because we have determined that there was no plain error in the failure to provide this instruction to the jury, \u201cdefendant\u2019s assertion of ineffective assistance of counsel with respect thereto must also fail.\u201d State v. Seagroves, 78 N.C. App. 49, 54, 336 S.E.2d 684, 688 (1985), disc. review denied, 316 N.C. 384, 342 S.E.2d 905 (1986).\nDefendant next contends that the trial court erred when it instructed the jury that the evidence tended to show that defendant confessed to the crimes charged. The judge instructed the jury, in pertinent part:\nThere\u2019s evidence which tends to show that the defendant confessed that he committed the crime charged in this case.\nIf you find that the defendant made that confession, then you should consider all of the circumstances under which it was made in determining whether it was a truthful confession and the weight you will give to it.\nAgain, we review for plain error since defendant did not object to this instruction at trial. This instruction is verbatim from the pattern jury instruction. N.C.P.I. \u2014 Crim. 104.70 (1970). Our Supreme Court has held that this instruction makes it clear \u201cthat even though there was evidence tending to show that the defendant had made an admission, it was solely for the jury to determine whether the defendant in fact had made any admission.\u201d State v. McKoy, 331 N.C. 731, 734, 417 S.E.2d 244, 246-47 (1992). We conclude that since the instruction was based upon a reasonable view of the evidence, it was not erroneous. State v. Cannon, 341 N.C. 79, 90, 459 S.E.2d 238, 245 (1995).\nFinally, defendant argues the trial court erred in failing to instruct on voluntary manslaughter based on imperfect self-defense. \u201c[S] elf-defense, perfect or imperfect, is not a defense to first-degree murder under the felony murder theory, and only perfect self-defense is applicable to the underlying felonies.\u201d State v. Richardson, 341 N.C. 658, 668, 462 S.E.2d 492, 499 (1995). If imperfect self-defense applied to felony murder, it would defeat the purpose of the felony murder rule, which is \u201cto deter even accidental killings from occurring during the commission of a dangerous felony.\u201d Id.\nIn this case, defendant was not found guilty of first-degree murder based on a theory of premeditation and deliberation, which can be mitigated by imperfect self-defense to voluntary manslaughter. See State v. Bush, 307 N.C. 152, 159, 297 S.E.2d 563, 568 (1982) (noting that the exercise of imperfect self-defense leaves defendant guilty of at least voluntary manslaughter). Instead, the jury found the defendant guilty based on the felony murder rule, and imperfect self-defense is not available as a defense to the underlying robbery. The failure of the trial court to instruct sua sponte on imperfect self-defense and voluntary manslaughter, therefore, does not rise to the level of plain error. We hold that defendant received a fair trial, free from prejudicial error.\nNo error.\nJudges HUNTER and CALABRIA concur.", "type": "majority", "author": "MARTIN, Chief Judge." } ], "attorneys": [ "Roy A. Cooper, III, Attorney General, by C. Norman Young, Jr., Assistant Attorney General, for the State.", "Ann B. Petersen for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. RICKY ANDREWS\nNo. COA02-691\n(Filed 3 May 2005)\n1. 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 and sufficient to support defendant\u2019s conviction of felony murder.\n2. Confessions and Incriminating Statements\u2014 Miranda rights \u2014 mentally retarded defendants\nThe trial court did not err in a first-degree felony murder and conspiracy to commit robbery case by denying defendant\u2019s motion to suppress his statement to the police allegedly obtained in violation of his Miranda rights even though defendant had an IQ of 61, because the findings all support the conclusion that the statement was voluntarily given and that defendant knowingly waived his Miranda rights.\n3. Evidence\u2014 exhibit \u2014 enlargement of defendant\u2019s statement\nThe trial court did not abuse its discretion in a first-degree felony murder and conspiracy to commit robbery case by permitting the State to display to the jury an enlarged image of defendant\u2019s statement to the police, because: (1) defendant\u2019s statement was already held to be admissible; and (2) the enlarged version was permissible for illustrative purposes.\n4. Conspiracy\u2014 robbery \u2014 instructions\u2014diminished capacity\nThe trial court did not commit plain error by failing to instruct the jury on diminished capacity regarding the conspiracy to commit robbery charge, because: (1) defendant\u2019s evidence concerning his low IQ, smoking marijuana, and sharing Hennessy over the course of the evening was not so overwhelming as to render the lack of a voluntary intoxication instruction prejudicial; (2) a voluntary intoxication instruction is not required even where there is testimony that defendant consumed intoxicating beverages or controlled substances; (3) there was testimony that defendant did not appear intoxicated; (4) finding defendant not guilty of first-degree murder based on premeditation and deliberation does not necessarily imply the jury concluded defendant had a diminished capacity to form any intent; (5) considering defendant\u2019s confession, a witness\u2019s testimony, the victim\u2019s statement regarding the shooting, and the forensic evidence, the jury had sufficient basis for its verdicts; and (6) it cannot be said that the jurors would have reached a different result had they been given this instruction.\n5. Constitutional Law\u2014 effective assistance of counsel \u2014 failure to request instruction\nDefense counsel\u2019s failure to request an instruction on diminished capacity regarding the conspiracy to commit robbery charge did not amount to ineffective assistance of counsel, because the Court of Appeals already determined that there was no plain error in the failure to provide this instruction to the jury.\n6. Criminal Law\u2014 instruction by trial court \u2014 defendant confessed to crimes\nThe trial court did not commit plain error in a first-degree felony murder and conspiracy to commit robbery case by instructing the jury that the evidence tended to show that defendant confessed to the crimes, because: (1) the instruction given by the trial court was verbatim from pattern jury instruction N.C.P.I. \u2014 Crim. 104.70; (2) the Supreme Court has held that this instruction makes it clear that even though there was evidence tending to show that defendant had made an admission, it was solely for the jury to determine whether defendant in fact had made any admission; and (3) the instruction was based on a reasonable view of the evidence.\n7. Homicide\u2014 instruction \u2014 voluntary manslaughter based on imperfect self-defense\nThe trial court did not commit plain error in a first-degree felony murder case by failing to instruct sua sponte on voluntary manslaughter based on imperfect self-defense, because: (1) defendant was not found guilty of first-degree murder based on a theory of premeditation and deliberation, which could be mitigated by imperfect self-defense to voluntary manslaughter; and (2) the jury found defendant guilty based on the felony murder rule, and imperfect self-defense is not available as a defense to the underlying robbery.\nAppeal by defendant from judgment entered 8 August 2001 by Judge. Michael E. Helms in Edgecombe County Superior Court. Originally heard in the Court of Appeals 24 March 2003. Remanded for further evidentiary hearing by order entered 8 July 2003, and heard in the Court of Appeals 11 April 2005.\nRoy A. Cooper, III, Attorney General, by C. Norman Young, Jr., Assistant Attorney General, for the State.\nAnn B. Petersen for defendant-appellant." }, "file_name": "0068-01", "first_page_order": 98, "last_page_order": 108 }