               IN THE SUPREME COURT OF NORTH CAROLINA

                                     No. 302A14

                                  Filed 8 June 2018

 STATE OF NORTH CAROLINA
              v.
 JUAN CARLOS RODRIGUEZ



      Appeal as of right pursuant to N.C.G.S. § 7A-27(a) from a judgment imposing

a sentence of death entered by Judge R. Stuart Albright on 21 March 2014 in Superior

Court, Forsyth County, upon a jury verdict finding defendant guilty of first-degree

murder. Heard in the Supreme Court on 10 October 2016. Following the initial oral

argument, this case was reargued on 9 October 2017.


      Josh H. Stein, Attorney General, by Mary Carla Babb and Kimberly N.
      Callahan, Assistant Attorneys General, for the State.

      Glenn Gerding, Appellate Defender, by Barbara S. Blackman, John F. Carella,
      and Kathryn L. VandenBerg, Assistant Appellate Defenders, for defendant-
      appellant.


      ERVIN, Justice.


      Defendant Juan Carlos Rodriguez was convicted of the first-degree murder of

his estranged wife, Maria Magdelana Rodriguez, and sentenced to death. After

careful consideration of defendant’s challenges to his convictions and sentence in light

of the record and the applicable law, we find no error in the proceedings leading to
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defendant’s conviction and the jury’s rejection of his intellectual disability defense.1

On the other hand, we conclude that the trial court erred by failing, acting ex mero

motu, to submit the statutory mitigating circumstance enumerated in N.C.G.S. § 15A-

2000(f)(6) (“[t]he capacity of the defendant to appreciate the criminality of his conduct

or to conform his conduct to the requirements of law was impaired”) to the jury at

defendant’s capital sentencing hearing. As a result, we vacate defendant’s death

sentence and remand this case to the Superior Court, Forsyth County, for a new

capital sentencing hearing.

                                  I. Factual Background

                                   A. Substantive Facts

                                    1. State’s Evidence

       Defendant and Ms. Rodriguez became emotionally involved with each other in

late 1992. The couple married when Ms. Rodriguez was thirteen years old and

defendant was sixteen or seventeen years old and had their first child when Ms.

Rodriguez was fourteen years old. Unfortunately, defendant became physically and

emotionally abusive towards Ms. Rodriguez following their marriage. This pattern

of domestic violence continued after the couple came to the United States.

       On 11 October 2010, Ms. Rodriguez entered a domestic violence shelter with

her three children because she could “no longer live with [her] husband” and did not


       1 Although the statutory provisions in effect at the time of defendant’s trial spoke in
terms of “mental retardation,” this opinion will use the currently applicable nomenclature of
“intellectual disability” in lieu of the earlier statutory expression.

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“have anywhere else to go.” At the time that she entered the shelter, Ms. Rodriguez

noted on an intake form that defendant had threatened to kill her, controlled most of

her daily activities, and was violently jealous of her. Although Ms. Rodriguez left the

shelter on 19 October 2010, she returned on 29 October to retrieve certain

medications that she had left at that location. During the 29 October visit to the

domestic violence shelter, Ms. Rodriguez seemed “happy” and “optimistic” and told

shelter personnel that, while she was “doing well” and while Mr. Rodriguez “ha[d] not

tried to move back in,” “she [wa]s struggling to find employment” and “need[ed]

assistance with food.” On the other hand, Ms. Rodriguez told her friend, Merlyn

Rodriguez, on 17 November 2010, that she was afraid of defendant; that he had “told

her that if they didn’t get back together, he would kill her”; and that “he could get rid

of her and just throw her in the river.”

      On 18 November 2010, defendant came to the couple’s former apartment,

which was located at 1828 Trellis Lane in Winston-Salem and in which Ms. Rodriguez

and the children had resided following the couple’s separation, and asked Ms.

Rodriguez to speak with him privately in the master bedroom. After a few minutes,

the Rodriguez children, who were listening to music in the living room, heard Ms.

Rodriguez cry for help.      Santos Estela Rodriguez, one of the couple’s children,

attempted to open the door to the master bedroom but found that it was locked.2 After


      2 Defendant’s son, Juan Carlos Rodriquez, gave an account of the events that occurred
at the 1828 Trellis Lane apartment that closely resembled that provided by Santos Estela
Rodriquez.

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failing to gain access to the master bedroom by using a knife, Santos Estela Rodriguez

told defendant that she was going to call the police. Shortly thereafter, defendant

emerged from the master bedroom with blood on his knuckles, feet, and clothes. As

soon as Santos Estela Rodriguez entered the master bedroom and “saw her mother

on the floor” “breathing really hard,” defendant stated that Ms. Rodriguez had hurt

herself on the furniture and that he was taking Ms. Rodriguez to the hospital. After

hoisting Ms. Rodriguez over his shoulder, defendant carried her to his vehicle.

      Several hours later, defendant returned to 1828 Trellis Lane without Ms.

Rodriguez. Upon arriving at the apartment, defendant asked the children and the

son of a neighbor to help him clean the blood stained carpeting in the master bedroom.

Although Santos Estela Rodriguez called all of the nearby hospitals, she was never

able to locate her mother. On the following morning, 19 November 2010, defendant

took the children to the home of his boss, Henry Ramirez, who lived in Eden. During

the trip to Eden, Santos Estela Rodriguez observed the presence of blood in

defendant’s vehicle.     A subsequent examination of defendant’s vehicle by

investigating officers revealed the presence of vomitus on the rear floorboard on the

driver’s side and blood on the interior of the rear driver’s side door jamb, the back

portion of the rear seat, a tan shirt located upon the upper portion of the rear seat,

the rear floor mat on the driver’s side, and the spare tire cover in the trunk.

      At the time that investigating officers searched the apartment at 1828 Trellis

Lane, they noticed that the premises were in disarray and that cleaning products


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could be found throughout the residence. “[A] large pool of blood or a large stain of

what appeared to be blood [could be seen] on [the] carpet.” According to another

investigating officer, the carpet in the master bedroom “was discolored a pinkish

color” and “frayed as though it had been scrubbed.” Additional blood spatter patterns

could be observed in the master bedroom as well.

      At about 11:30 p.m. on 18 November 2010, Merlyn Rodriguez ’s sister, Zoila

Rodriguez , began receiving messages from Ms. Rodriguez’s phone. The messages

received from Ms. Rodriguez ’s phone stated that:

              Soyla, I went with my secret boyfriend to Spain. Carlos
              does not know. If he calls, tell him the truth and take care
              of the children. I met him three months ago. Cut the phone
              off because it doesn’t work in the airport. Good-bye. I will
              call you from Spain. . . . I don’t have a charge anymore.
              Good-bye. Cut the telephone off. Later, I will fix it. I will
              call you from there.

Although Ms. Rodriguez knew how to spell Zoila Rodriguez’s name, defendant later

spelled Zoila’s name as “Soyla” while conversing with investigating officers.

      On 19 November 2010, Merlyn Rodriguez attempted to telephone Ms.

Rodriguez on several occasions. However, each of Merlyn Rodriguez’s calls went

unanswered.     After ascertaining that Ms. Rodriguez was not in her apartment,

Merlyn Rodriguez called defendant, who initially told Merlyn Rodriguez that he did

not know where Ms. Rodriguez was before stating that Ms. Rodriguez had “[s]tepped

out of the house that night” and “never came back” and finally telling Merlyn




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Rodriguez that Ms. Rodriguez had “had an accident that night” and “was at the

hospital.”

      Following her conversation with defendant, Merlyn Rodriguez called the

police. Officer L.N. Williams of the Winston-Salem Police Department responded to

Merlyn Rodriguez’s missing person report, entered Ms. Rodriguez’s apartment, and

determined that she was not there.        At that point, Officer Williams obtained

defendant’s phone number from Merlyn Rodriguez and called defendant for the

purpose of inquiring into Ms. Rodriguez’s whereabouts.        Defendant told Officer

Williams that Ms. Rodriguez had gone for a walk and did not return.              After

ascertaining that Ms. Rodriguez was not at work or at a local shelter and that the

Rodriguez children were not in school, investigating officers began treating this

matter as a high-risk missing person’s case.

      Defendant spent the night of 19 November 2010 with his pastor, David Agueda,

in Martinsville, Virginia. On the following morning, while leading Saturday services,

Pastor Agueda learned that investigating officers were looking for defendant and Ms.

Rodriguez. Upon obtaining this information, Pastor Agueda advised defendant to

turn himself in.

      At approximately 7:00 p.m. on 19 November 2010, Lieutenant Steven Tollie of

the Winston-Salem Police Department reclassified the case as a homicide and

assigned it to Detective Stanley Nieves. After investigating officers located defendant

on 21 November 2010, he was taken to Eden to be interviewed by Detective Nieves.


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In response to Detective Nieves’s request that he describe the events that had

occurred on 18 November 2010 at the 1828 Trellis Lane apartment, defendant stated

that Ms. Rodriguez had told him that she was a lesbian and no longer wanted to be

with him, that Ms. Rodriguez had hit her head against the dresser while lunging at

him, and that Ms. Rodriguez had called for help after falling to the floor. At that

point, defendant assisted Ms. Rodriguez in her efforts to get up, carried her to his car,

and began to drive her to the hospital. As he did so, Ms. Rodriguez told defendant to

stop, left the vehicle, and walked out of defendant’s sight. Although Detective Nieves

repeatedly accused defendant of having killed Ms. Rodriguez and having knowledge

of the location at which Ms. Rodriguez’s body could be found, defendant repeatedly

denied Detective Nieves’s accusations.

      On the afternoon of 12 December 2010, which was a “very cold, damp” day

featuring light snow and misty rain, investigating officers received a report that a

decapitated body had been discovered in an area near 5020 Williamsburg Road in

Winston-Salem that was “overgrown with small bushy pines” about “40 to 50 feet to

the west of the asphalt area.”     Fingerprint information obtained from the body

established that it was that of Ms. Rodriguez. On 29 May 2013, a human skull, later

determined to be that of Ms. Rodriguez through the use of DNA analysis, was found

in a wooded area near Belews Lake in rural Forsyth County.

      According to Patrick Lantz, M.D., who autopsied the body, Ms. Rodriguez was

in the early stages of decomposition at the time that her body was discovered. Dr.


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Lantz observed “maggot activity around the incision on the skin,” incision marks

around her clavicle, and a number of bruises all over her body characteristic of

defensive wounds.”     Dr. Lantz opined that “the cause of death was manual

strangulation,” that Ms. Rodriguez had been decapitated after her death, and that,

while there was “not exactly” “a scientific way to determine a postmortem interval,”

he believed, based upon information that he had received from investigating officers

concerning the date upon which Ms. Rodriguez had last been seen alive and the

observations that he had made during the autopsy and at the location at which the

body had been discovered, that Ms. Rodriguez had died on 18 November 2010 and

that the postmortem interval “was consistent with her being out there for three and

a half weeks, or 24 days.”

                              2. Defendant’s Evidence

      Although she acknowledged that a forensic pathologist would be better

qualified than she was to make such a determination, Dr. Ann Ross, a forensic

anthropologist, concluded that Ms. Rodriguez ’s abdominal area showed no signs of

greening, which appears early in the putrefaction process. In addition, Dr. Ross

believed that the crime scene and autopsy photographs suggested that Ms. Rodriguez

“was still in the fresh state” of decomposition at the time that her body was found

given the absence of significant marbling or maggot masses. According to Dr. Ross,

“the remains of the decedent were in a fresh state” and had “not been out in the

environmental conditions before December 1.” Similarly, Thomas L. Bennett, M.D.,


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a forensic pathologist, was of the opinion that “the most probable time frame” “is that

[Ms.] Rodriguez was dead between three and seven days or so prior to her body being

found on December 12th.”

                               B. Intellectual Disability

                             1. Defendant’s Life History

      Defendant was born on 11 November 1974 in the Usulutan Department of El

Salvador.   Defendant and his family left the Usulutan Department “somewhere

between 1979 and 1982” “because of the guerillas, who were the leftist fighters in the

civil war in El Salvador.” Defendant’s family ultimately settled in Anchila, a location

that was believed to be safe, when defendant was a child. However, the guerillas

“began to occupy the area across the river from Anchila” after the Rodriguez family

arrived at that location.

      The Rodriguez home in Anchila was a “one-room hut[ ] with dirt floors. The

walls were made out of sticks and mud.” Although the roof was made out of “grass or

tin,” “there[ was] no solid wall” or “security to speak of.” “[D]uring the rainy season,

the floods would flood through the house,” exposing the family “to all kinds of

bacteria, viruses, decaying animals, [and] human waste” from a nearby outhouse.

      While in Anchila, defendant “didn’t have access to medical care,” did not

“attend school of any kind,” and experienced “[c]hronic hunger [as] a way of life.”

Upon reaching the age of nine, defendant was sent to live with an aunt in San

Salvador, which was considered to be safer and to have less fighting than Anchila.


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While in San Salvador, defendant began to receive medical care and entered the first

grade. After successfully completing the first grade while failing the second grade,

defendant returned to Anchila to help his family and repeat the second grade when

he was eleven or twelve years old.

      At the time that defendant returned to Anchila, “the civil war was very much

raging around the family.” Defendant heard “shooting at night and [remembered]

the family being on the floor in terror.” “It was not uncommon for [the family] to see

dead bodies along the way when they were walking to school” and to “hear bomb[s]

blasting[ ] and shooting.” When defendant was sixteen years old, his older brother,

Jose Fermin, was killed by guerillas after joining the army.          Defendant was

responsible for retrieving his brother’s body and bringing it to the family home. While

he was still sixteen and in the seventh grade, defendant dropped out of school.

      After Jose Fermin’s death and defendant’s marriage to Ms. Rodriguez,

defendant relocated to the United States. Upon arriving in this country, defendant

was granted asylum on the grounds that he had been “threatened by the guerillas”

and was “[l]iving in constant fear” and received authorization to work. Although

defendant’s son, Fermin, remained in El Salvador with defendant’s father, Ms.

Rodriguez joined defendant in the United States, where the couple had three more

children, Santos Estela, Juan Carlos, Jr., and Jonathan.




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                                2. Expert Testimony

                              a. Defendant’s Evidence

      Dr. Selena Sermeno, an expert in the field of clinical psychology who

specializes in issues involving El Salvadoran young people, testified that the

“protective and risk factors” present in a child’s life, coupled with “the presence of

chronic violence and trauma and adversity” and “[f]actors such as poverty,

malnutrition, poor health, falls, exposure to trauma, any form of traumatic event,

[and] the presence of fear,” affect the child’s intellectual capabilities. According to

Dr. Sermeno, the civil war that occurred in El Salvador during defendant’s

adolescence had a significant negative effect upon his cognitive development. Among

other things, Dr. Sermeno observed that defendant’s memory and communication

skills were impaired, which is “a very classic symptom in children who are

traumatized to that degree.” Defendant struggled “to recall information in any kind

of chronological sequential or linear format,” was confused by numerical concepts,

and answered questions in a very literal manner. In addition, defendant’s exposure

to dangerous pesticides and contaminated water caused him to suffer from frequent

illnesses, for which he never received proper medical care. Dr. Sermeno believed

that the existence of these adverse environmental conditions had a significant effect

upon defendant’s intellectual development as well.

      According to Dr. Sermeno, defendant suffered from post-traumatic stress

disorder and a mild intellectual disability. In support of the second of these two


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diagnoses, Dr. Sermeno pointed to the fact that defendant scored 61 on the third

edition of the Wechsler Adult Intelligence Scale (WAIS-III). In Dr. Sermeno’s view,

defendant had particular difficulties with functional academic learning and

communication skills, with these deficiencies having manifested themselves before

defendant reached the age of eighteen.        In addition, Dr. Sermeno’s intellectual

disability diagnosis also rested upon defendant’s exposure to extreme poverty, severe

malnutrition, constant violence, pesticides, educational obstacles, and inadequate

health care. Finally, Dr. Sermeno believed that defendant’s post-traumatic stress

disorder made it difficult for him to express strong emotions through verbal

communication and body language.

      Moira Artigues, M.D., a general and forensic psychiatrist, testified that she

had evaluated defendant’s “developmental history and the impact that that may have

had on him, as well as . . . his affect and demeanor, his face and his manner, and to

form opinions about that as well.” Dr. Artigues analyzes whether a person has an

intellectual disability by examining that person’s “background information, in terms

of poverty, malnutrition, deprivation, education resources, and medical resources,”

“[b]ecause lack in any of those can affect intellectual development in children.”

According to Dr. Artigues, severe trauma, like that associated with “growing up in a

civil war, very poor, and malnourished, causes the brain to wire in a way that’s not

optimal, and it can certainly affect your IQ as a result of the faulty wiring.” As a child

in El Salvador, defendant lacked access to medical care, experienced nutritional


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deprivation, and had no educational stimulation until he reached the age of ten, all

of which can affect an individual’s brain development and contribute to the

development of a low intelligence quotient. Moreover, the experience of growing up

during a civil war can result in accumulated trauma over time which can, in turn,

lead to the development of post-traumatic stress disorder. In Dr. Artigues’s view, a

child’s attempts to cope “with this chronic trauma and extreme stress” can affect the

child’s brain development and intelligence quotient.

      In Dr. Artigues’s opinion, defendant was mildly intellectually disabled. In

support of this assertion, Dr. Artigues considered the fact that defendant had to make

six different attempts to pass his driver’s license test after reaching the United

States. In addition, Dr. Artiques noted that, while interviewing defendant, he failed

to grasp abstract concepts and had difficulty relaying information in chronological

order, both of which conditions, in Dr. Artigues’s opinion, reflect the existence of an

intellectual disability. Dr. Artigues testified that defendant learned how to be a brick

mason by being shown measurements marked permanently on a yardstick rather

than by utilizing mathematics, with this type of learning limitation being typical of

persons suffering from a mild intellectual disability. According to Dr. Artigues,

intellectually disabled individuals have the ability to drive motor vehicles, work,

marry, and have children.      Dr. Artigues believed that defendant’s intellectual

disability manifested itself before he turned eighteen years of age in light of

defendant’s school records, intelligence quotient test scores, the results achieved


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during defendant’s psychological evaluations, and defendant’s exposure to

malnutrition, severe trauma, and poverty. In Dr. Artigues’s view, defendant was

significantly deficient in functional academics and communication skills. Finally, Dr.

Artigues determined that defendant suffered from post-traumatic stress disorder

given that he had been exposed to significant trauma during his life, reported having

had intrusive thoughts about the traumatic events that he had experienced, and

experienced certain specific triggering events.

      Dr. Antonio Puente, a clinical neuropsychologist and professor of psychology at

the University of North Carolina at Wilmington, conducted a neuropsychological

evaluation of defendant. Dr. Puente testified that the fact that defendant had a full

scale score of 61 on the Central American, Spanish language version of the WAIS-III

placed defendant in the bottom one percentile of the population. In addition, Dr.

Puente administered the Beta Test, Third Edition; the Comprehensive Test of

Nonverbal Intelligence, Second Edition; and the Bateria Test, Third Edition, to

defendant. According to Dr. Puente, the Beta test was developed to measure the

intellectual abilities of individuals who lack a formal education. Defendant had a

score of 65 on the Beta Test, a result that placed him in the bottom one percent of the

population. Similarly, Dr. Puente testified that defendant’s full-scale score of 53 on

the Comprehensive Test of Nonverbal Intelligence placed him in the bottom

percentile. Although the Bateria test does not produce an intelligence quotient score,

it does generate an intellectual abilities number. Defendant’s intellectual abilities


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score placed him in the second percentile from the bottom. According to Dr. Puente,

mild intellectual disability involves an intelligence quotient of between 50 and 70.

      Another sign of mild intellectual disability, in Dr. Puente’s view, is the

presence of only some of the skills that allow an individual to function in society. Dr.

Puente undertook this portion of his analysis by examining defendant’s school

records, driving tests, and the opinions of knowledgeable persons concerning

defendant’s functional capabilities. In addition, Dr. Puente administered sixteen

additional neuropsychological tests to defendant, three of which were used to assess

the reliability of defendant’s responses and the adequacy of defendant’s efforts during

the testing process. According to Dr. Puente, defendant’s test results did not reflect

malingering and accurately demonstrated the extent of defendant’s abilities. As a

result, Dr. Puente testified that defendant has significant sub-average intellectual

functioning; has deficient cognitive, social, and practical skills; and is significantly

impaired in the areas of functional academics and communication skills, with all of

these diagnostic criteria having manifested themselves before defendant attained the

age of eighteen.

                                  b. State’s Evidence

      Stephen Kramer, M.D., a forensic neuropsychiatrist and professor of

psychiatry at Wake Forest Baptist Medical Center, testified on behalf of the State

that the El Salvadoran school system, which is much less rigorous than the United

States school system, grades students on a scale from one to ten, with five being the


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lowest passing score. According to Dr. Kramer, most of defendant’s grades were in

the six to seven range, a set of results that is inconsistent with the presence of mild

intellectual disability. In addition, Dr. Kramer noted that defendant could perform

the chores expected of similarly aged children, another fact that suggests that

defendant did not suffer from mild intellectual disability. In a similar vein, Dr.

Kramer noted that defendant had been able to find employment in the United States

that paid more than the minimum wage and that he had been known to “motivate”

his co-workers, with these facts also being inconsistent with a contention that

defendant suffers from a mild intellectual disability. According to Dr. Kramer, other

activities in which defendant engaged, including the payment of taxes, the

maintenance of his immigration status, and his ability to obtain a driver’s license,

“show[ed that defendant had] a level of adaptive functioning beyond that [expected]

for the deficits requisite for a diagnosis of” intellectual disability.

       Dr. Kramer testified that Detective Nieves had described defendant’s Spanish

as grammatically correct and that defendant had used an appropriate volume when

speaking with the detective. Dr. Kramer noted that defendant had received a number

of visitors since the date of his incarceration, a fact that tends to suggest that

defendant has a social network and demonstrates his adaptive abilities. Dr. Kramer

considered defendant’s request for a Spanish-to-English dictionary, a Bible, and a

Spanish textbook while in pretrial detention to indicate that defendant has the

apparent ability to read and desired to engage in that activity, with those attributes


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further tending to show that defendant has adaptive capabilities. On the other hand,

Dr. Kramer, like Dr. Artigues, believed that defendant has difficulty understanding

abstract concepts like confidentiality or privacy.

      According to Dr. Kramer, Dr. Puente mischaracterized the results of

defendant’s Dot Counting Test, an instrument used to detect malingering, because

defendant “did worse the second time he did the test and was way over the threshold

for suspecting not giving full effort.” Dr. Kramer noted that defendant was “overtly

cooperative,” had a normal mood range, spoke Spanish in a clear and distinct manner

while exhibiting a regular rate and rhythm, and had no difficulty with the

comprehension portion of the exam. In addition, while defendant could not identify

the year, month, day of the week, or season, he was able to perform complex

commands without difficulty. The fact that defendant could not name the months of

the year was “astonishing” to Dr. Kramer given his belief that even a person with

mild intellectual disability should be able to perform that task.

      Dr. Kramer administered a variety of tests for the purpose of assessing

defendant’s mathematical abilities, visual and verbal memory, neurological

functioning, and motor skills. According to Dr. Kramer, defendant’s math skills were

“horrible” and included “very bizarre” responses.         While completing a “literal

cancellation test,” which required defendant to find all of the As on a page while

subject to certain time constraints, defendant missed some As and worked very

slowly, with the physical restraints to which defendant was subject and visual deficits


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which defendant experienced accounting for this aspect of his performance. Dr.

Kramer determined that defendant has a score of less than one on the National

Stressful Events Survey PTSD Short Scale Test, which indicated, according to Dr.

Kramer, that the severity of defendant’s reaction to stress was, at most, mild. Even

so, Dr. Kramer diagnosed defendant as suffering from dysthymic disorder, which is a

form of chronic depression, and post-traumatic stress disorder.

      Dr. Kramer questioned whether defendant exhibited symptoms of significant

sub-average intellectual functioning. Although the fact that defendant had lived in

severe poverty and suffered from malnutrition might adversely affect his intelligence

quotient scores, those factors do not appear to have actually impaired his intellectual

capacity. In addition, Dr. Kramer testified that defendant’s “school grades were not

consistent with [those of] someone with mild intellectual disability.” According to Dr.

Kramer, defendant’s only adaptive functioning deficiency involved functional

academics. As a result, for all of these reasons, Dr. Kramer disagreed with Dr.

Puente’s diagnosis that defendant suffered from an intellectual disability.

                          c. Defendant’s Rebuttal Evidence

      Dr. John Olley, a professor at the University of North Carolina at Chapel Hill

and a psychologist at the Carolina Institute for Developmental Disabilities, testified

that, since a person with an intelligence quotient of between 55 and 70 can

appropriately be diagnosed as mildly intellectually disabled and since defendant had

a score of 61 on the WAIS-III, his intelligence quotient falls within the mildly


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intellectually disabled range. In Dr. Olley’s view, approximately one-third of mildly

intellectually disabled persons are able to obtain a driver’s license or learner’s permit.

Dr. Olley asserted that “a person’s accomplishments” cannot “rule out” the existence

of an intellectual disability given that such a “diagnosis is based on identifying

deficits, not identifying strengths,” and revolves around “a pattern of lifelong

limitations.”   In addition, Dr. Olley stated that the American Association of

Intellectual and Development Disabilities (AAIDD), which was formerly known as

the American Association of Mental Retardation, believes that socioeconomic factors,

such as malnutrition, poverty, and lack of access to early childhood education, are

“causative or at least high-risk factors in the diagnosis of” intellectual disabilities.

According to Dr. Olley, the AAIDD attributes intellectual disabilities to biological,

behavioral, social, and educational factors, with the biological factor being present in

only the more severe cases of intellectual disabilities and with the other factors

contributing to less severe cases. In Dr. Olley’s view, poverty can contribute to a

diagnosis of intellectual disability.

                                 3. Capital Sentencing

                                   a. State’s Evidence

      According to Lieutenant Tollie, the Rodriguez children had initially been

placed in foster care before going to live with Ms. Rodriguez ’s father, who resides in

Boston. Friends Anna and Merlyn Rodriguez described Ms. Rodriguez as a very




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loving and caring mother who took good care of her children and had been excited to

begin a new job at McDonald’s.

                               b. Defendant’s Evidence

      Defendant had not been cited for any disciplinary infractions during the period

of time in which he was held in pretrial confinement. Defendant’s father, Manuel

Romero, who was handicapped, loves his son very much and needs his financial

support. Similarly, defendant’s sister, Ana Julia Romero, testified that she loves her

brother very much, that defendant denied having done anything to Ms. Rodriguez,

and that Ms. Rodriguez was a very nice person who loved defendant and had been a

good wife. Juan Carlos Rodriguez and Estela Santos Rodriguez expressed the desire

to continue to have a relationship with their father, stated that they loved and missed

him, and described Ms. Rodriguez as a loving mother.

                                 B. Procedural History

      On 2 July 2012, the Forsyth County grand jury returned a bill of indictment

charging defendant with assault with a deadly weapon inflicting serious injury and

first-degree kidnapping. On 16 July 2012, the Forsyth County grand jury returned

superseding indictments charging defendant with first-degree murder, assault with

a deadly weapon inflicting serious injury, and first-degree kidnapping. The charges

against defendant came on for trial before the trial court and a jury at the 3 February

2014 criminal session of the Superior Court, Forsyth County.




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      On 10 March 2014, the jury returned verdicts finding defendant guilty of first-

degree murder on the basis of malice, premeditation, and deliberation and the felony

murder rule using first-degree kidnapping as the predicate felony, assault with a

deadly weapon inflicting serious injury, and first-degree kidnapping. After accepting

the jury’s verdict, the trial court convened a separate proceeding for the purpose of

determining whether defendant is intellectually disabled as that term is currently

used in N.C.G.S. § 15A-2005. On 14 March 2014, the jury returned a verdict finding

that defendant was not exempt from the imposition of the death penalty based upon

intellectual disability-related grounds. On 17 March 2014, defendant unsuccessfully

moved to set aside the jury verdict with respect to the intellectual disability issue.

On the same day, the sentencing phase of defendant’s trial commenced.

      On 21 March 2014, the jury returned a verdict determining that defendant had

killed Ms. Rodriguez while engaged in the commission of a first-degree kidnapping.

The jury did not find as mitigating circumstances that defendant lacked a significant

history of prior criminal conduct, N.C.G.S. § 15A-2000(f)(1), or that defendant had

murdered Ms. Rodriguez while under the influence of a mental or emotional

disturbance, id. § 15A-2000(f)(2).     In addition, the jury rejected all proposed

nonstatutory mitigating circumstances and found that no other mitigating

circumstances existed, id. 15A-2000(f)(9).        Finally, the jury found that the

aggravating circumstance was sufficiently substantial to call for the imposition of the

death penalty. Based upon the jury’s verdicts, the trial court arrested judgment with


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                                   Opinion of the Court



respect to defendant’s first-degree kidnapping conviction and entered judgments

sentencing defendant to death based upon his first-degree murder conviction and to

a concurrent term of twenty-five to thirty-nine months imprisonment based upon his

conviction for assault with a deadly weapon inflicting serious injury. Defendant

noted an appeal to this Court from the trial court’s judgments.3

                                   II. Legal Analysis

                                   A. Jury Selection

      In his initial challenge to the trial court’s judgments, defendant contends that

the trial court deprived him of his state and federal constitutional right to a trial by

a fair and impartial jury by prohibiting his trial counsel from questioning prospective

jurors concerning their ability to follow the applicable law prohibiting the imposition

of the death penalty upon an intellectually disabled person.          More specifically,

defendant contends that “[i]t was critically important that each juror be free of any

bias regarding the exemption of [intellectually disabled] offenders from capital

punishment that would prevent that juror from deciding the question of [intellectual

disability] based on the clinical evidence in accordance with § 15A-2005,” which

provides that “no defendant who is [intellectually disabled] shall be sentenced to

death.” N.C.G.S. § 15A-2005 (2014). According to defendant, the jurors empaneled



      3  The record does not reflect that defendant filed a motion to bypass the Court of
Appeals with respect to the trial court’s judgment in the case in which defendant was
convicted of and sentenced for assault with a deadly weapon inflicting serious injury. We
grant a motion to bypass the Court of Appeals in that case on our own motion.

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                                  Opinion of the Court



to hear and decide this case “were not made aware until the sentencing phase that

they would need to make a determination of [intellectual disability] that could take

the death penalty off the table” or questioned concerning their ability to follow the

law governing the extent to which an intellectually disabled person is eligible for the

imposition of the death penalty in violation of defendant’s Sixth Amendment right “to

ascertain whether the juror has any bias, opinion, or prejudice that would affect or

control the fair determination by him of the issues to be tried,” quoting Conners v.

United States, 158 U.S. 408, 413, 15 S. Ct. 951, 953, 39 L. Ed. 1033, 1035 (1895), and

citing Morgan v. Illinois, 504 U.S. 719, 727, 112 S. Ct. 2222, 2228-29, 119 L. Ed. 2d

494, 502 (1992).

      The State contends, on the other hand, that the trial court did not abuse its

discretion during the jury selection process by sustaining the State’s objection to

defendant’s attempts to question prospective jurors concerning intellectual disability

issues.   Contrary to defendant’s assertions, the trial court simply prohibited

defendant from prefacing the questions that he sought to pose to prospective jurors

concerning intellectual disability issues with general legal statements. In addition,

the State contends that defendant was able to elicit the information that he sought

to obtain by posing these questions based upon prospective jurors’ answers to other

questions that the trial court allowed defendant to pursue and statements that the

trial court allowed defendant’s trial counsel to make. Finally, the State notes that

the trial court properly instructed the jury concerning the effect of a finding of


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                                   Opinion of the Court



intellectual disability upon the jury’s ability to make a binding recommendation that

defendant be sentenced to death at an appropriate point in the proceedings.

      During the jury selection process, defendant’s trial counsel told the trial court

that defendant’s “intent was to ask these jurors can they follow the law with regard

to mental retardation” and that, in order to make an adequate inquiry into this

subject, he would be required “to tell them a little bit about what the law is.” In

response, the trial judge stated that defendant would be allowed to inquire into jurors’

ability to follow the applicable law and stated:

                    THE COURT:          Just      don’t    give editorial
             comments. I certainly understand you’re going to be
             entitled—you can preface it as, “There may be a defense or
             evidence of alleged mental retardation in this case. Will
             you be able to fairly consider it in this case?”
                    Is that—does that not get you what you want? . . .

                    [DEFENSE COUNSEL]: It does. What I would like
             to say is that North Carolina does not allow . . . . for a
             defendant to get the death penalty if they’re mentally
             retarded; does anybody on the panel have any issues with
             that law.

                    ....

                   THE COURT:            Does the State object to that line
             of questioning?

                    [PROSECUTOR]: Yes, Your Honor. We object to
             him prefacing it with what the state of the law is until the
             jury is instructed. . . . Because we would contend it’s going
             to be in dispute.

                    ....



                                          -24-
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                                   Opinion of the Court



                   THE COURT:           When we get to the jury
             instructions, I’ll give them the law that applies to this
             particular case. You’re going to be entitled to ask questions
             about any –

                    [DEFENSE COUNSEL]: And mental retardation is
             not a mitigating circumstance that decides, yes or no, death
             penalty. That’s the weighing part of it. I don’t want the
             jury confused that this is just another mitigating
             circumstance. It’s the law that they have to first decide
             before they even get to that [procedure.]

                    THE COURT:           I’m not inclined –

                    ....

                   THE COURT:            — to allow the defendant just to
             state general propositions of the law. You’re absolutely
             going to be entitled to ask jurors questions, as we’ve
             already discussed, with regard to any alleged mental
             retardation evidence. . . .

                    ....

                    THE COURT:         . . . You can ask them if they can
             follow the law that the Court will give you with regard to
             mental retardation and the effect it may have as to any
             decisions in the case. “Can you follow the law fairly and
             impartially that the Judge will give you with regard to the
             law on mental retardation?”

                    . . . But I’ve told everybody that neither attorney
             should question the jurors about the law except to ask
             whether they will follow the law as given to you by the
             Court.

After the prospective jurors returned to the courtroom at the conclusion of this

colloquy between the trial court and counsel for the parties, defendant’s trial counsel

stated, without objection, that “[m]ental retardation is a defense to the death penalty”


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                                      Opinion of the Court



and that “[m]ental retardation is defined, among other things, as having a low IQ”

and, along with the prosecutor, asked prospective jurors numerous questions related

to intellectual disability issues.

       “The primary goal of the jury selection process is to ensure selection of a jury

comprised only of persons who will render a fair and impartial verdict.” State v.

Locklear, 331 N.C. 239, 247, 415 S.E.2d 726, 731 (1992) (citation omitted). “Pursuant

to N.C.G.S. § 15A-1214(c), counsel may question prospective jurors concerning their

fitness or competency to serve as jurors to determine whether there is a basis to

challenge for cause or whether to exercise a peremptory challenge.”              State v.

Fullwood, 343 N.C. 725, 732, 472 S.E.2d 883, 886-87 (1996) (citing N.C.G.S. § 15A-

1214(c) (1988), cert. denied, 520 U.S. 1122, 117 S. Ct. 1260, 137 L. Ed. 2d 339 (1997)).

As part of the jury selection process, the trial court must allow counsel an opportunity

“to inquire into the ability of the prospective jurors to follow the law,” with “questions

designed to measure prospective jurors’ ability to follow the law [being] within the

[proper] context of voir dire.” State v. Wiley, 355 N.C. 592, 617, 565 S.E.2d 22, 40

(2002), cert. denied, 537 U.S. 1117, 123 S. Ct. 882, 154 L. Ed. 2d 795 (2003). On the

other hand, “[t]he trial judge has broad discretion to regulate jury voir dire.”

Fullwood, 343 N.C. at 732, 472 S.E.2d at 887 (citing State v. Lee, 335 N.C. 244, 268,

439 S.E.2d 547, 559, cert. denied, 513 U.S. 891, 115 S. Ct. 239, 130 L. Ed. 2d 162

(1994)); see also State v. Locklear, 349 N.C. 118, 142, 505 S.E.2d 277, 291 (1998)

(explaining that “the extent and manner of the inquiry [allowed to counsel] rests


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                                   Opinion of the Court



within the trial court’s discretion”), cert. denied, 526 U.S. 1075, 119 S. Ct. 1475, 143

L. Ed. 2d 559 (1999). “In order for a defendant to show reversible error in the trial

court’s regulation of jury selection, a defendant must show that the court abused its

discretion and that he was prejudiced thereby.” Lee, 335 N.C. at 268, 439 S.E.2d at

559 (citations omitted).    As a result, “the trial court’s exercise of discretion in

preventing a defendant from pursuing a relevant line of questioning” must “render[ ]

the trial fundamentally unfair” in order for the defendant to be entitled to obtain

relief on appeal to this Court. Fullwood, 343 N.C. at 732-33, 472 S.E.2d at 887 (citing,

inter alia, Morgan, 504 U.S. at 730 n.5, 112 S. Ct. at 2230 n.5, 119 L. Ed. 2d at 503

n.5).

        Although the trial court did inform defendant’s trial counsel that they should

limit their questioning of prospective jurors with respect to intellectual disability

issues to inquiring whether the members of the jury “can follow the law as given to

you by the Court,” defendant was allowed, without any objection from the State, to

explain to two different jury panels at a time when all of the prospective jurors were

present that “[m]ental retardation is a defense to the death penalty.” In addition,

defendant’s trial counsel asked prospective jurors about their prior experiences with

intellectually disabled individuals, the extent of their familiarity with intelligence

testing and adaptive skills functioning issues, their willingness to consider expert

mental health testimony, and their willingness to follow the applicable law as

embodied in the trial court’s instructions. When considered in conjunction with the


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                                  Opinion of the Court



fact that defendant’s trial counsel was allowed to tell the prospective jurors that

“[m]ental retardation is a defense to the death penalty” and the common sense

understanding of a “defense” as something that precludes a finding of guilt or the

imposition of a particular punishment, the questions that defendant’s trial counsel

were allowed to pose to prospective jurors concerning their ability to follow the law

with respect to the intellectual disability issue sufficed to permit defendant’s trial

counsel to determine whether specific jurors could fairly consider and follow the trial

court’s instructions concerning the issue of whether defendant should be exempted

from the imposition of the death penalty on the basis of any intellectual disabilities

from which he suffered. On the other hand, the specific question that defendant

sought permission to pose to prospective jurors would have done little more than elicit

the prospective jurors’ opinions concerning the validity of the undisputed legal

principle barring the imposition of the death penalty upon intellectually disabled

individuals. As a result, we do not believe that the limitations that the trial court

placed upon the ability of defendant’s trial counsel to question prospective jurors

concerning intellectual disability issues constituted an abuse of discretion or

“render[ed] the trial fundamentally unfair.” Fullwood, 343 N.C. at 732-33, 472 S.E.2d

at 887.




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                                  Opinion of the Court



                        B. Guilt-Innocence Proceeding Issues

                            1. Sufficiency of the Evidence

      Secondly, defendant contends that the trial court erred by denying his motion

to dismiss the first-degree murder charge that had been lodged against him because

the State failed to present sufficient evidence to establish his identity as the

perpetrator of Ms. Rodriguez’s murder. In support of this contention, defendant

asserts that, when a State’s case is wholly dependent upon circumstantial evidence,

reviewing courts examine the record evidence for “proof of motive, opportunity,

capability, and identity” in order “to show that a particular person committed a

particular crime,” quoting State v. Bell, 65 N.C App. 234, 238, 309 S.E.2d 464, 467

(1983), aff’d, 311 N.C. 299, 316 S.E.2d 72 (1984). Although defendant acknowledges

that the record contains sufficient evidence to permit a rational juror to find that he

had the capability and motive to commit first-degree murder, he contends that the

State failed to elicit sufficient evidence to establish the necessary opportunity and

identity. More specifically, defendant points to the expert testimony contained in the

record suggesting that Ms. Rodriguez died much later than 18 November 2010 and

argues that “the State lacked any eyewitness testimony or physical evidence

establishing where and when the homicide occurred,” with such evidence being

“critical to establishing opportunity,” citing State v. Scott, 296 N.C. 519, 522, 251

S.E.2d 414, 416-17 (1979). In response, the State contends that the evidence more

than sufficed to establish that defendant murdered Ms. Rodriguez, with defendant’s


                                         -29-
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                                    Opinion of the Court



argument resting upon an interpretation of the evidence that is favorable to himself

rather than to the State.

       “In ruling on a motion to dismiss, the trial court need determine only whether

there is substantial evidence of each essential element of the crime and that the

defendant is the perpetrator.” State v. Call, 349 N.C. 382, 417, 508 S.E.2d 496, 518

(1998) (citation omitted). “Substantial evidence is that amount of relevant evidence

necessary to persuade a rational juror to accept a conclusion.” State v. Mann, 355

N.C. 294, 301, 560 S.E.2d 776, 781 (citation omitted), cert. denied, 537 U.S. 1005, 123

S. Ct. 495, 154 L. Ed. 2d 403 (2002). “As to whether substantial evidence exists, the

question for the trial court is not one of weight, but of the sufficiency of the evidence.”

Id. at 301, 560 S.E.2d at 781.

                      The evidence is to be considered in the light most
              favorable to the State; the State is entitled to every
              reasonable intendment and every reasonable inference to
              be drawn therefrom; contradictions and discrepancies are
              for the jury to resolve and do not warrant dismissal; and
              all of the evidence actually admitted, whether competent
              or incompetent, which is favorable to the State is to be
              considered by the court in ruling on the motion.

State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980) (citations omitted). On

the other hand, in the event that the evidence merely raises “a suspicion or conjecture

as to either the commission of the offense or the identity of the defendant as the

perpetrator, the motion to dismiss must be allowed.” State v. Malloy, 309 N.C. 176,

179, 305 S.E.2d 718, 720 (1983) (citations omitted). “Circumstantial evidence may



                                           -30-
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                                   Opinion of the Court



withstand a motion to dismiss and support a conviction even when the evidence does

not rule out every hypothesis of innocence.” State v. Stone, 323 N.C. 447, 452, 373

S.E.2d 430, 433 (1988).

      First-degree murder “is the unlawful killing of another human being with

malice and with premeditation and deliberation.” State v. Bonney, 329 N.C. 61, 77,

405 S.E.2d 145, 154 (1991). “Premeditation and deliberation ‘are not ordinarily

subject to proof by direct evidence, but must generally be proved . . . by circumstantial

evidence.’ ” State v. Taylor, 337 N.C. 597, 607, 447 S.E.2d 360, 367 (1994) (alteration

in original) (quoting State v. Williams, 308 N.C. 47, 68-69, 301 S.E.2d 335, 349, cert.

denied, 464 U.S. 865, 104 S. Ct. 202, 78 L. Ed. 2d 177 (1983)).4 “Circumstances

tending to prove that the killing was premeditated and deliberate include, but are

not limited to:

             (1) want of provocation on the part of the deceased; (2) the
             conduct and statements of the defendant before and after
             the killing; (3) threats and declarations of the defendant
             before and during the course of the occurrence giving rise
             to the death of the deceased; (4) ill-will or previous
             difficulty between the parties; (5) the dealing of lethal
             blows after the deceased has been felled and rendered
             helpless; and (6) evidence that the killing was done in a
             brutal manner.

Id. at 607, 447 S.E.2d at 367 (quoting Williams, 308 N.C. at 69, 301 S.E.2d at 349);

see also State v. Trull, 349 N.C. 428, 448, 509 S.E.2d 178, 192 (1998) (concluding that



      4In February 2010, a three-judge panel of the North Carolina Innocence Commission
unanimously ruled that Taylor had been wrongly convicted in 1993.

                                          -31-
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                                  Opinion of the Court



the defendant’s actions in destroying evidence and attempting to cover up his

involvement in the murder “permit the inference that defendant acted with

premeditation and deliberation”), cert. denied, 528 U.S. 835, 120 S. Ct. 95, 145 L. Ed.

2d 80 (1999); State v. Scott, 343 N.C. 313, 341, 471 S.E.2d 605, 622 (1996) (concluding

that evidence tending to show, among other things, that the “[d]efendant lied to

everyone about [the decedent’s] whereabouts and did not call the police or emergency

medical personnel” “was sufficient to show premeditation and deliberation”); State v.

Richardson, 328 N.C. 505, 513, 402 S.E.2d 401, 406 (1991) (concluding that evidence

that the defendant strangled the victim sufficed to show premeditation and

deliberation).

      The evidence elicited by the State at trial tended to show that defendant had

a history of abusing Ms. Rodriguez, that defendant had threatened to kill Ms.

Rodriguez and to dispose of her body, that defendant violently attacked Ms.

Rodriguez on 18 November 2010, that defendant was the last person to see Ms.

Rodriguez alive, that defendant had been seen in the general area in which Ms.

Rodriguez’s body had been discovered, that defendant had attempted to clean up the

location at which he assaulted Ms. Rodriguez, that defendant sent text messages from

Ms. Rodriguez’s phone to Merlyn Rodriguez in an attempt to establish that Ms.

Rodriguez had voluntarily left the area, that Ms. Rodriguez’s clothing and blood were

found in defendant’s vehicle, that defendant made conflicting statements concerning

the circumstances surrounding Ms. Rodriguez’s disappearance to various people, and


                                         -32-
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                                  Opinion of the Court



that the autopsy performed upon Ms. Rodriguez’s body indicated, consistently with

other evidence tending to show that blood was emanating from Ms. Rodriguez ’s nose

as Mr. Rodriguez carried her away, that Ms. Rodriguez had aspirated blood prior to

her death. Aside from the fact that the evidence contains ample support for the

State’s contention that defendant caused Ms. Rodriguez’s death, “[t]hese facts permit

the inference that defendant acted with premeditation and deliberation.” Trull, 349

N.C. at 448, 509 S.E.2d at 192. As a result, the trial court did not err by denying

defendant’s motion to dismiss the first-degree murder charge for insufficiency of the

evidence.

      2. Admission of Evidence Concerning Dr. Kramer’s Former Employment

      Thirdly, defendant contends that the trial court erred by allowing the State to

elicit, over objection, evidence that one of defendant’s trial counsel had previously

hired Dr. Kramer to testify on behalf of another client. In defendant’s view, “[t]he

State improperly vouched for Dr. Kramer’s credibility by eliciting testimony that Dr.

Kramer had been hired by Robert Campbell, one of Mr. Rodriguez’s attorneys, to

testify on behalf of a criminal defense client in another case and in highlighting the

prior employment in its closing argument,” with this error having been particularly

prejudicial given that the State’s opposition to defendant’s claim to be exempt from

the imposition of the death penalty on intellectual disability grounds rested solely

upon the credibility of Dr. Kramer’s opinion that defendant was not intellectually

disabled. In response to defendant’s assertion, the State contends that the challenged


                                         -33-
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                                    Opinion of the Court



testimony was relevant to the issue of Dr. Kramer’s lack of bias and that the trial

court did not err by allowing its admission.

      When conducting a cross-examination, a prosecutor may not “inject into

questions ‘his own knowledge, beliefs, and personal opinions not supported by the

evidence.’ ” State v. Sanderson, 336 N.C. 1, 14, 442 S.E.2d 33, 41 (1994) (quoting

State v. Britt, 288 N.C. 699, 711, 220 S.E.2d 283, 291 (1975)); see also State v. Phillips,

240 N.C. 516, 527, 82 S.E.2d 762, 770 (1954) (opining that prosecuting attorneys

cannot “place before the jury by argument, insinuating questions, or other means,

incompetent and prejudicial matters not legally admissible in evidence”).                A

prosecutor does not improperly vouch for the credibility of a State’s witness, or

otherwise “inject” “his own knowledge, beliefs, and personal opinions” into

questioning, Sanderson, 336 N.C. at 14, 442 S.E.2d at 41, by merely explaining why

the jury should find a State’s witness to be credible. State v. Bunning, 338 N.C. 483,

488-89, 450 S.E.2d 462, 464 (1994). “A witness may be [questioned concerning] any

matter relevant to any issue in the case, including credibility.” State v. Lewis, 365

N.C. 488, 494, 724 S.E.2d 492, 497 (2012) (quoting N.C.G.S. § 8C-1, Rule 611(b)

(2011)). “We have long held that evidence of bias is logically relevant to a witness’

credibility . . . .” Id. at 494, 724 S.E.2d 497; see also State v. Atkins, 349 N.C. 62, 83,

505 S.E.2d 97, 110 (1998) (concluding that “the State appropriately attempted to

illustrate a potential source of witness bias, as revealed by the expert witness’s own

curriculum vitae”), cert. denied, 526 U.S. 1147, 119 S. Ct. 2025, 143 L. Ed. 2d 1036


                                           -34-
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                                    Opinion of the Court



(1999). If the record at trial “reveals significant discrepancies between the diagnosis

made by defendant’s . . . expert and the diagnosis reached by the State’s expert,” “it

[is] entirely proper to elicit testimony indicative of potential witness bias.” Atkins,

349 N.C. at 83, 505 S.E.2d at 111. A prosecutor’s decision to elicit evidence tending

to show a lack of bias on the part of a State’s witness does not constitute

impermissible prosecutorial vouching. See Bunning, 338 N.C. at 489, 450 S.E.2d at

464 (concluding that “statements by the prosecuting attorney were more in the nature

of giving reason why the jury should believe the State’s evidence than that the

prosecuting attorney was vouching for the credibility of the State’s witnesses or for

his own credibility”).

      As we have already noted, Dr. Kramer testified that he disagreed with Dr.

Puente’s determination that defendant suffers from a mild intellectual disability. In

view of the “significant discrepancies between the diagnosis made by defendant’s . . .

expert and the diagnosis reached by the State’s expert,” “it [is] entirely proper to elicit

testimony indicative of potential witness bias,” or the lack thereof. Atkins, 349 N.C.

at 83, 505 S.E.2d at 111. The prosecutor’s decision to elicit evidence to the effect that

Dr. Kramer had previously performed work for one of defendant’s trial counsel did

not “inject” the prosecutor’s personal opinions into defendant’s intellectual

capabilities.   On the contrary, the evidence elicited in response to the relevant

prosecutorial questions tended to show a lack of bias on the part of Dr. Kramer by

demonstrating that he had previously worked on behalf of both the State and criminal


                                           -35-
                                 STATE V. RODRIGUEZ

                                   Opinion of the Court



defendants.      Although the trial court might have been better advised to have

exercised its discretionary authority pursuant to N.C.G.S. § 8C-1, Rule 403, to limit

the scope of the prosecutor’s inquiry to whether Dr. Kramer had previously worked

for counsel representing criminal defendants in general rather than specifically

identifying one of defendant’s trial counsel as an attorney to whom Dr. Kramer had

provided expert assistance, we are unable to say, given the record before us in this

case, that the challenged testimony constituted impermissible prosecutorial vouching

for Dr. Kramer’s credibility or that the trial court erred by refusing to preclude the

admission of the challenged testimony.

                         C. Intellectual Disability Proceeding

      Next, defendant contends that he demonstrated that he suffers from an

intellectual disability by a preponderance of the evidence and that the trial court

erred by denying his motion to set aside the jury’s verdict in the State’s favor with

respect to this issue. As defendant notes, he was required to prove that he had

“significantly    subaverage   general   intellectual     functioning”   and   “significant

limitations in adaptive functioning” that “was manifested before the age of 18,”

quoting N.C.G.S. § 15A-2005(a)(2), by a preponderance of the evidence in order to be

found to be exempt from the imposition of the death penalty upon intellectual

disability grounds, citing id. § 15A-2005(f). Defendant claims to have satisfied his

burden of proof with respect to this issue given that three of his intelligence quotient

scores were below 70, that three separate expert witnesses testified that he had


                                          -36-
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                                   Opinion of the Court



significant limitations in at least two of the statutorily enumerated areas of adaptive

functioning, and that each of defendant’s experts testified that defendant’s mild

intellectual disability manifested itself before he reached the age of eighteen.

According to defendant, the State’s expert did little more than challenge the evidence

tending to show that defendant exhibited subaverage intellectual functioning as

“questionable” and agreed that defendant had an adaptive deficit in the area of

functional academics. In response, the State contends that a reviewing court should

not disturb a jury determination with respect to the issue of intellectual disability in

the event that there is any competent evidence reasonably tending to support it and

that the record provided ample support for the jury’s determination that defendant

had failed to establish that he should be exempt from the imposition of the death

penalty on intellectual disability grounds.

      A trial court’s ruling with respect to a motion to set aside a jury verdict “will

not be disturbed on appeal absent an abuse of discretion.” State v. Batts, 303 N.C.

155, 162, 277 S.E.2d 385, 389 (1981) (citations omitted) (upholding the denial of a

motion to set aside a verdict after finding that “[t]here was sufficient evidence to

warrant submission of the case to the jury and to support its verdict”). According to

well-established North Carolina law, “[t]he credibility of the witnesses, the weight of

the testimony, and conflicts in the evidence are matters for the jury to consider and

pass upon,” State v. Alford, 329 N.C. 755, 761, 407 S.E.2d 519, 524 (1991) (citations

omitted), with the reviewing court lacking any responsibility for “pass[ing] on the


                                          -37-
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                                     Opinion of the Court



credibility of witnesses or to weigh[ing] the testimony,” State v. Hanes, 268 N.C 335,

339, 150 S.E.2d 489, 492 (1966). Defendant’s assertion that we should conduct a de

novo review of the trial court’s decision to refrain from setting aside the jury’s verdict

with respect to the intellectual disability issue amounts to a request that we reweigh

the evidence and make our own factual findings on appeal, a task for which an

appellate court like this one is not well suited. Although defendant did present

sufficient evidence to support a determination that he should be deemed exempt from

the imposition of the death penalty on intellectual disability grounds, the State

presented expert testimony from Dr. Kramer tending to support a contrary

determination. The relative credibility of the testimony offered by the various expert

witnesses concerning the nature and extent of defendant’s intellectual limitations

was a matter for the jury rather than for this Court, particularly given that the

burden of proof with respect to the intellectual disability issue rested upon defendant.

In light of the fact that the record reveals the existence of a conflict in the evidence

concerning the extent to which defendant was intellectually disabled for purposes of

N.C.G.S. § 15A-2005, we are unable to conclude that the trial court abused its

discretion by failing to set aside the jury’s verdict in the State’s favor with respect to

that issue.5


       5 In his supplemental brief, defendant contends that he is entitled to relief from the
trial court’s intellectual disability determination on the basis of the United States Supreme
Court’s decision in Moore v. Texas, ___ U.S. ___, 137 S. Ct. 1039, 197 L. Ed. 2d 416 (2017). In
support of this contention, defendant reiterates his argument, which we have already
rejected, that this Court is required to undertake a de novo review of the merits of the

                                             -38-
                                    STATE V. RODRIGUEZ

                                      Opinion of the Court



                             D. Capital Sentencing Proceeding

       Finally, defendant asserts that the trial court erred at defendant’s capital

sentencing proceeding by failing to instruct the jury with respect to the statutory

mitigating factor enumerated in N.C.G.S. § 15A-2000(f)(6), which addresses the

extent to which defendant’s capacity to appreciate the criminality of his conduct or to

conform his conduct to the law was impaired. According to defendant, the trial court

must instruct the jury concerning whether a particular mitigating circumstance

exists in the event that the record contains sufficient evidence to establish the

existence of that mitigating circumstance, citing State v. Hurst, 360 N.C. 181, 197,

624 S.E.2d 309, 322, cert. denied, 549 U.S. 875, 127 S. Ct. 186, 166 L. Ed. 2d 131

(2006). According to defendant, the record contained ample evidence tending to show

that that defendant’s “capacity . . . to appreciate the criminality of his conduct or to

conform his conduct to the requirements of law was impaired,” quoting N.C.G.S. §

15A-2000(f)(6), with the jury being entitled to find the existence of the statutory

mitigating circumstance enumerated in N.C.G.S. § 15A-2000(f)(6) “even if a




intellectual disability issue and contends that a portion of the evidence that the State elicited
and the arguments that the State advanced during the intellectual disability proceeding
conflict with the logic that the United States Supreme Court utilized in Moore. However,
given defendant’s failure to bring a challenge to the admission of the challenged evidence or
the making of the challenged arguments forward for our consideration and defendant’s
failure to contend that the trial court’s intellectual disability instructions conflicted with
Moore in any way, we are not persuaded that defendant’s Moore-based arguments are
properly before us or that Moore has any bearing on the intellectual disability issue that
defendant has actually raised, which is whether the trial court abused its discretion by
refusing to set the jury’s verdict with respect to the intellectual disability issue aside.

                                              -39-
                                 STATE V. RODRIGUEZ

                                  Opinion of the Court



defendant has capacity to know right from wrong, to know that the act he committed

was wrong, and to the know the nature and quality of the act,” quoting State v.

Johnson, 298 N.C. 47, 68, 257 S.E.2d 597, 613 (1979). More specifically, defendant

contends that the record contains substantial evidence tending to show that

defendant is intellectually disabled and suffers from post-traumatic stress disorder

or another mental condition and that defendant killed Ms. Rodriguez in the course of

a marital crisis characterized by emotional turmoil. Defendant asserts that “[t]he

combination of subnormal intelligence, psychological disorders, and/or a breakdown

in a relationship has often been held to support submission of both the (f)(2) and the

(f)(6) statutory mitigating circumstances,” citing, inter alia, State v. Fullwood, 329

N.C. 233, 404 S.E.2d 842 (1991) (concluding that the record contained substantial

evidence tending to show the existence of the (f)(6) statutory mitigating circumstance

given that an expert psychologist had testified that defendant had limited verbal

abilities and suffered from low self-esteem); State v. Huff, 325 N.C. 1, 381 S.E.2d 635

(1989), vacated, 497 U.S. 1021, 110 S. Ct. 3266, 111 L. Ed. 2d 777 (1990), on remand,

328 N.C. 532, 402 S.E.2d 577 (1991) (concluding that the record contained sufficient

evidence to support the submission of the (f)(6) statutory mitigating circumstance

given that the defendant exhibited symptoms of paranoid schizophrenia and

delusional thinking); State v. Stokes, 308 N.C. 634, 304 S.E.2d 184 (1983) (holding

that the record contained sufficient evidence to support the submission of the (f)(6)

statutory mitigating circumstance given the presence of evidence tending to show


                                         -40-
                                 STATE V. RODRIGUEZ

                                  Opinion of the Court



that the defendant had an intelligence quotient of 63, poor reading skills, an

antisocial disorder, and a history of mental health problems).

      In seeking to persuade us to reach a different result, the State argues that this

Court has noted that the (f)(6) statutory mitigating circumstance

             has only been found to be supported in cases where there
             was evidence, expert or lay, of some mental disorder,
             disease, or defect, or voluntary intoxication by alcohol or
             narcotic drugs, to the degree that it affected the
             defendant’s ability to understand and control his actions.

State v. Kemmerlin, 356 N.C. 446, 479, 481, 573 S.E.2d 870, 893, 894 (2002)

(concluding the trial court did not err by failing to submit the (f)(6) statutory

mitigating circumstance even though a defense mental health expert diagnosed

defendant with borderline personality disorder and major depressive disorder on the

grounds that the expert also testified that these conditions “did not prevent defendant

from appreciating the criminality of her conduct and controlling her conduct as

required by law”). Moreover, the State asserts that this Court has concluded that a

defendant’s conduct in the time leading up to and following the murder “may

demonstrate that he was aware that his acts were criminal.” State v. Polke, 361 N.C.

65, 72, 638 S.E.2d 189, 194 (2006), cert. denied, 552 U.S. 836, 128 S. Ct. 70, 169 L.

Ed. 2d 55 (2007). Although the record did contain evidence tending to show that

defendant has subaverage intellectual functioning, suffers from post-traumatic stress

disorder and chronic depression, and was in the midst of a marital crisis, the State

argues that the record was devoid of any evidence that these conditions impaired his


                                         -41-
                                 STATE V. RODRIGUEZ

                                   Opinion of the Court



capacity “to appreciate the criminality of his conduct or to conform his conduct to the

requirements of law,” quoting N.C.G.S. § 15A-2000(f)(6), at the time that he murdered

Ms. Rodriguez. On the contrary, according to the State, the evidence concerning

defendant’s conduct before and after the murder of Ms. Rodriguez demonstrated

defendant’s awareness that “his acts were criminal,” quoting Polke, 361 N.C. at 72,

638 S.E.2d at 194. Finally, the State contends that any error that the trial court

might have committed by failing to instruct the jury concerning the (f)(6) statutory

mitigating circumstance was harmless given that “any such error did not prevent any

juror from considering and giving weight to the mitigating evidence,” quoting State

v. Ward, 338 N.C. 64, 113, 449 S.E.2d 709, 736-37 (1994), cert. denied, 514 U.S. 1134,

115 S. Ct. 2014, 131 L. Ed. 2d 1013 (1995).

      According to N.C.G.S. § 15A-2000(b), a trial judge is required to instruct the

jury to consider any aggravating or mitigating circumstances which have adequate

evidentiary support. N.C.G.S. § 15A-2000(b) (2017). For that reason, “a trial court

has no discretion in determining whether to submit a mitigating circumstance when

‘substantial evidence’ in support of the circumstance has been presented.” State v.

Watts, 357 N.C. 366, 377, 584 S.E.2d 740, 748 (2003) (quoting State v. Fletcher, 354

N.C. 455, 477, 555 S.E.2d 534, 547 (2001), cert. denied, 537 U.S. 846, 123 S. Ct. 184,

154 L. Ed. 2d 73 (2002)), cert. denied, 541 U.S. 944, 124 S. Ct. 1673, 158 L. Ed. 2d 370

(2004); see also State v. Williams, 350 N.C. 1, 10-11, 510 S.E.2d 626, 633 (explaining

that “the trial court has no discretion” and that “the statutory mitigating


                                          -42-
                                 STATE V. RODRIGUEZ

                                   Opinion of the Court



circumstance must be submitted to the jury, without regard to the wishes of the State

or the defendant,” if the “evidence will support a rational jury finding” concerning the

existence of the mitigating circumstance) (quoting State v. Smith, 347 N.C. 453,

469,496 S.E.2d 357, 366, cert. denied, 525 U.S. 845, 119 S. Ct. 113, 142 L. Ed. 2d 91

(1998)), cert. denied, 528 U.S. 880, 120 S. Ct. 193, 145 L. Ed. 2d 162 (1999). “The test

for determining if the evidence is ‘substantial evidence’ ” to support an instruction for

a statutory mitigating circumstance, “is ‘whether a juror could reasonably find that

the circumstance exists based on the evidence.’ ” Watts, 357 N.C. at 377, 584 S.E.2d

at 748 (quoting Kemmerlin, 356 N.C. at 478, 573 S.E.2d at 892 (internal quotation

marks omitted)). As a result, “[e]ven if the defendant does not request the submission

of the [statutory] mitigator or objects to its submission, the trial court must submit

the circumstance when it is supported by sufficient evidence,” State v. Cummings,

361 N.C. 438, 471, 648 S.E.2d 788, 808 (2007) (citations omitted), cert. denied, 552

U.S. 1319, 128 S. Ct. 1888, 170 L. Ed. 2d. 760 (2008), with “any reasonable doubt

regarding the submission of a statutory or requested mitigating factor [to] be resolved

in favor of the defendant,” State v. Phillips, 365 N.C. 103, 146, 711 S.E.2d 122, 152

(2011) (quoting State v. Brown, 315 N.C. 40, 62, 337 S.E.2d 808, 825 (1985), cert.

denied, 476 U.S. 1164, 106 S. Ct. 2293, 90 L. Ed. 2d 733 (1986), overruled on other

grounds by State v. Vandiver, 321 N.C. 570, 364 S.E.2d 373 (1988)), cert. denied, 565

U.S. 1204, 132 S. Ct. 1541, 182 L. Ed. 2d 176 (2012). In other words, the actual fact-

finding decision must, under the procedures outlined in North Carolina’s capital


                                          -43-
                                   STATE V. RODRIGUEZ

                                    Opinion of the Court



sentencing statues, be made by the jury rather than the trial or a reviewing court.

“[F]ailure to submit a statutory mitigating circumstance that is supported by

sufficient evidence is prejudicial error unless the State can demonstrate that the error

was harmless beyond a reasonable doubt.” Hurst, 360 N.C. at 194, 624 S.E.2d at 320

(citation omitted).

       N.C.G.S. § 15A-2000(f)(6) creates a statutory mitigating circumstance

applicable to situations in which “[t]he capacity of the defendant to appreciate the

criminality of his conduct or to conform his conduct to the requirements of law was

impaired.”     N.C.G.S. § 15A-2000(f)(6) (2017).           The (f)(6) statutory mitigating

circumstance

              may exist even if a defendant has capacity to know right
              from wrong, to know that the act he committed was wrong,
              and to know the nature and quality of that act. It would
              exist even under these circumstances if the defendant’s
              capacity to appreciate (to fully comprehend or be fully
              sensible of) the criminality (wrongfulness) of his conduct
              was impaired (lessened or diminished), or if defendant’s
              capacity to follow the law and refrain from engaging in the
              illegal conduct was likewise impaired (lessened or
              diminished).

Johnson, 298 N.C at 375, 259 S.E.2d at 764. Evidence, “expert or lay, of some mental

disorder, disease, or defect . . . to the degree that it affected the defendant’s ability to

understand and control his actions” supports submission of the (f)(6) statutory

mitigating circumstance. Kemmerlin, 356 N.C. at 479, 573 S.E.2d at 893 (quoting

State v. Syriani, 333 N.C. 350, 395, 428 S.E.2d 118, 142-43, cert. denied, 510 U.S. 948,



                                           -44-
                                STATE V. RODRIGUEZ

                                  Opinion of the Court



114 S. Ct. 392, 126 L. Ed. 2d 341 (1993)). Even “[i]f the jury determines that the

defendant does not have an intellectual disability as defined by [N.C.G.S. § 15A-

2005], the jury may consider any evidence of intellectual disability presented during

the sentencing hearing when determining aggravating or mitigating factors and the

defendant’s sentence.” N.C.G.S. § 15A-2005(g) (2017), see also Bobby v. Bies, 556 U.S.

825, 829, 129 S. Ct. 2145, 2149, 173 L. Ed. 2d 1173, 1178-79 (2009) (explaining that

“mental retardation for purposes of Atkins[ v. Virginia], and mental retardation as

one mitigator to be weighed against aggravators, are discrete issues”).

      In Fullwood, this Court found that the record contained “substantial evidence

to support [the (f)(6)] statutory mitigating circumstance,” including expert testimony

tending to show that the defendant’s intelligence was between “low normal” and

“retarded,” that the defendant “suffered from very low feelings of self-esteem and

‘inadequate personality,’ ” that the defendant’s “ability to understand and be

understood through words was severely limited,” and that the defendant was

suffering from emotional anguish at the time that he committed the murder at issue

in that case. 329 N.C. at 237, 404 S.E.2d at 844. Among other things, the expert

witness upon whose testimony we relied in concluding that the record supported the

submission of the (f)(6) statutory mitigating circumstance in Fullwood stated that

“the stress from [the defendant’s] poor relationship with his lover and child affected

the defendant’s limited intellectual resources to the extent that the defendant’s

judgment was very poor at the moment of the crime.” Id. at 237, 404 S.E.2d at 844.


                                         -45-
                                 STATE V. RODRIGUEZ

                                   Opinion of the Court



Similarly, we have also stated that the record contained sufficient evidence to support

the submission of the (f)(6) statutory mitigating circumstance to the jury in light of

the existence of evidence concerning the defendant’s “impoverished skills,” “chronic

substance abuse,” “poor impulse control,” and “diminished capacity” resulting in the

defendant’s “failure to understand the consequences of his actions.” State v. Hooks,

353 N.C. 629, 641-42, 548 S.E.2d 501, 510 (2001), cert. denied, 534 U.S. 1155, 122S.

Ct. 1126, 151 L. Ed. 2d 1018 (2002).

      The issue of whether the trial court should submit the (f)(6) statutory

mitigating circumstance to the jury does not hinge upon the presence or absence of

evidence tending to show that the defendant “was under the influence of a mental or

emotional disorder or disturbance” “at the time of the killing.” State v. Geddie, 345

N.C. 73, 102-03, 478 S.E.2d 146, 161 (1996) (ellipses in original) (finding that “[t]he

use of the word ‘disturbance’ in the (f)(2) circumstance shows the General Assembly

intended something more . . . than mental impairment which is found in [the (f)(6)]

mitigating circumstance’ ”), cert. denied, 522 U.S. 825, 118 S. Ct. 86, 139 L. Ed. 2d 43

(1997) (quoting State v. Spruill, 320 N.C. 688, 696, 360 S.E.2d 667, 671 (1987), cert.

denied, 486 U.S. 1061, 108 S. Ct. 2833, 100 L. Ed. 2d 934 (1988)). For example, in

State v. Stokes, this Court held that evidence tending to show that the defendant had

a lengthy history of “mental problems,” was “mildly retarded,” and suffered from an

“antisocial disorder,” 308 N.C. at 655, 304 S.E.2d at 197, sufficed to support a jury

determination “that defendant’s capacity to fully comprehend the wrongfulness of his


                                          -46-
                                 STATE V. RODRIGUEZ

                                   Opinion of the Court



conduct was impaired or diminished” so as to require the trial court to “submit[ ] the

mitigating circumstance set forth in G.S. 15A-2000(f)(6) to the sentencing jury,” id.

at 656, 304 S.E.2d at 197, even though the record also contained evidence tending to

show that the defendant “was capable of distinguishing right from wrong at the time

of the offenses were committed,” id. at 654, 304 S.E.2d at 197.

      The record before us in this case contains ample support for the submission of

the (f)(6) statutory mitigating circumstance. As an initial matter, we note that the

record contains considerable evidence tending to show that defendant suffered from

an intellectual disability, with the relevant evidence including expert testimony that

defendant had an average intelligence quotient score of 61, that this intelligence

quotient score placed defendant in the lowest two percent of the population, that

defendant’s intellectual disability initially manifested itself before defendant reached

the age of eighteen, and that defendant’s intelligence level will remain constant

throughout his life. In addition, the record contains ample evidence that defendant

suffers from multiple deficiencies in adaptive functioning and that defendant’s

exposure to extreme poverty, severe malnutrition, constant violence, and harmful

pesticides, coupled with his lack of formal education and access to meaningful health

care, make it more likely that defendant suffers from an intellectual disability. As

Dr. Puente noted, a defendant’s diminished intellectual capabilities impair his or her

reasoning capabilities.   Secondly, the expert testimony contained in the present

record contains near-unanimous support for the proposition that defendant suffers


                                          -47-
                                STATE V. RODRIGUEZ

                                  Opinion of the Court



from an emotional disorder, such as dysthymic disorder (chronic depression) or post-

traumatic stress disorder, and that defendant killed Ms. Rodriguez during a time of

marital turmoil. As this Court indicated in State v. Greene, 329 N.C. 771, 777, 408

S.E.2d 185, 188 (1991), “an abnormally susceptible defendant” can be motivated “to

commit murder” by emotional turmoil despite the fact that “a person of normal

mental and emotional stability would likely have resolved [the situation] without

such disastrous results.”    The evidence of defendant’s mental limitations and

disturbed and overwrought thinking supports a rational inference that defendant’s

ability to fully comprehend the wrongfulness of his conduct and to conform his

conduct to the requirements of the law was adversely affected at the time that he

murdered Ms. Rodriguez. Thus, the evidence contained in the record developed in

this case, like the evidence that this Court considered in cases such as Stokes and

Fullwood, more than suffices to permit a rational juror to conclude that defendant’s

capacity to appreciate the criminality of his conduct or to conform his conduct to the

requirements of the law at the time that he murdered Ms. Rodgriquez was impaired,

so that the trial court erred by failing to submit the (f)(6) statutory mitigating

circumstance to the jury.

      The State’s contention that the actions in which defendant engaged following

the murder of Ms. Rodriguez establish defendant’s awareness that his actions were

wrongful rests upon a misapprehension of the nature and effect of the relevant

statutory mitigating circumstance and the standard that the trial court should utilize


                                         -48-
                                STATE V. RODRIGUEZ

                                  Opinion of the Court



in determining whether a particular mitigating circumstance should be submitted to

the jury. In essence, the State’s argument assumes that any recognition of the

wrongfulness of his conduct on defendant’s part suffices to preclude the necessity for

the submission of the (f)(6) statutory mitigating circumstance. Aside from the fact

that this aspect of the State’s argument might be understood to require us to make a

factual, rather than a sufficiency of the evidence, determination, a rational juror is

entitled, as this Court recognized in Johnson, to find the existence of the (f)(6)

statutory mitigating circumstance even if the defendant knew “right from wrong,”

understood “the nature and quality of [the] act,” and “appreciate[d] . . . the

criminality” of the act at the time of the commission of the murder for which he or

she is being sentenced. 298 N.C. at 375, 259 S.E.2d at 764. Although intellectually

disabled and emotionally disturbed and overwrought individuals “frequently know

the difference between right and wrong,” “they have diminished capacities to

understand and process information, to communicate, to abstract from mistakes, and

learn from experience, to engage in logical reasoning, to control impulses, and to

understand the reactions of others” “[b]ecause of their impairments.”       Atkins v.

Virginia, 536 U.S. 304, 318, 122 S. Ct. 2242, 2250, 153 L. Ed. 2d 335, 348 (2002). As

a result, even though the record in this case certainly contains evidence tending to

suggest that, at some level, defendant understood the criminality of his conduct and

attempted to undertake actions that were intended to avoid the consequences of his

wrongful conduct, that fact does not obviate the necessity for the submission of the


                                         -49-
                                 STATE V. RODRIGUEZ

                                   Opinion of the Court



(f)(6) statutory mitigating circumstance given that the relevant legal test does not

treat any recognition of wrongful conduct on the part of a defendant as sufficient to

support the non-submission of the statutory mitigating circumstance in question.

       The State’s suggestion that defendant’s failure to present explicit evidence that

the mental and emotional conditions from which he suffered existed and affected his

conduct at the time that he murdered Ms. Rodriguez is equally misplaced. As an

initial matter, we note that, while such evidence is necessary to support a finding

that the statutory mitigating circumstance enumerated in N.C.G.S. § 15A-2000(f)(2)

exists, the same is not true with respect to the statutory mitigating circumstance

enumerated in N.C.G.S. § 15A-2000(f)(6). See Geddie, 345 N.C. at 102, 478 S.E.2d at

161.   Aside from the fact that Dr. Puente testified that defendant’s intellectual

limitations adversely affected his judgment at the time that he murdered Ms.

Rodriguez, the evidence tending to show that defendant’s intellectual disability had

manifested itself before the time that defendant turned eighteen and the evidence

tending to show that defendant’s post-traumatic stress disorder had its origins in the

impoverished and violent circumstances surrounding his childhood provide ample

support for an inference that the conditions that tend to suggest the appropriateness

of submitting the (f)(6) statutory mitigating circumstance existed and affected

defendant’s ability to appreciate the criminality of his conduct or to conform his

conduct to the requirements of the law at the time that he killed his estranged wife.

As a result, given that “any reasonable doubt regarding the submission of a statutory


                                          -50-
                                 STATE V. RODRIGUEZ

                                  Opinion of the Court



or requested mitigating factor [must] be resolved in favor of the defendant,” Phillips,

365 N.C. at 146, 711 S.E.2d at 152 (alteration in original) (quoting State v. Brown,

315 N.C. at 62, 337 S.E.2d at 825), and given that this Court has never required that

the record contain explicit expert or lay testimony couched in the language set out in

N.C.G.S. § 15A-2000(f)(6) as a precondition for the submission of the (f)(6) statutory

mitigating circumstance to the jury, we conclude that the trial court erred by failing

to submit the (f)(6) statutory mitigating circumstance to the jury at defendant’s

capital sentencing hearing.

      Finally, we are unable to hold that the trial court’s failure to instruct the jury

concerning the statutory mitigating circumstance enumerated in N.C.G.S. § 15A-

2000(f)(6) was harmless beyond a reasonable doubt. The State’s argument to the

contrary notwithstanding, this Court has held that an erroneous failure to submit a

statutory mitigating circumstance to the jury at a capital sentencing hearing is not

cured by the submission of other statutory and non-statutory mitigating

circumstances given that “[e]ach mitigating circumstance is a discrete circumstance”

with “its own meaning and effect.” Greene, 329 N.C. at 776, 408 S.E.2d at 187. For

that reason, the submission of other statutory and non-statutory mitigating

circumstances and the catch-all mitigating circumstance enumerated in N.C.G.S. §

15A-2000(f)(9) did not provide the jury with an adequate opportunity to consider the

extensive evidence tending to show that defendant’s “capacity . . . to appreciate the

criminality of his conduct or to conform his conduct to the requirements of law was


                                         -51-
                                   STATE V. RODRIGUEZ

                                     Opinion of the Court



impaired.” In addition, given the nature and extent of the evidence contained in the

present record concerning defendant’s intellectual limitations, mental health

diagnoses, and emotional turmoil, we are unable to conclude beyond a reasonable

doubt that no juror would have found the existence of the (f)(6) statutory mitigating

circumstance and given it substantial weight in the jury’s ultimate decision had the

(f))(6) statutory mitigating circumstance been submitted to the jury at defendant’s

capital sentencing hearing.      As a result, defendant is entitled to a new capital

sentencing hearing.6

                                      III. Conclusion

       Thus, for the reasons set out above, we hold that the guilt-innocence and

intellectual disability proceedings conducted before the trial court were free from

error and that the outcomes reached in those proceedings should remain undisturbed.

We further conclude, however, that the trial court committed prejudicial error by

failing to submit the statutory mitigating circumstance enumerated in N.C.G.S. §

15A-2000(f)(6) to the jury at defendant’s capital sentencing hearing. As a result,

defendant’s death sentence is vacated and this case is remanded to the Superior

Court, Forsyth County for a new capital sentencing hearing.




       In view of our decision that defendant is entitled to a new capital sentencing hearing,
       6

we need not address defendant’s remaining challenges to his death sentence.

                                            -52-
                      STATE V. RODRIGUEZ

                       Opinion of the Court



    NO ERROR IN GUILT-INNOCENCE PROCEEDING; DEATH SENTENCE

VACATED; REMANDED FOR NEW CAPITAL SENTENCING PROCEEDING.




                              -53-
                                STATE V. RODRIGUEZ

                                Martin, C.J., dissenting




      Chief Justice MARTIN dissenting.

      Defendant beat and abducted his wife, Maria Rodriguez, before strangling her

to death. After defendant strangled Maria, he decapitated her and hid her head and

the rest of her body in two separate places. Maria’s skull was not found for two and

a half years.

      A Forsyth County jury unanimously sentenced defendant to death for this

premeditated and deliberate murder. Rather than respecting the jury’s carefully

considered sentencing verdict, the majority tries mightily to apply the facts of this

case to the statutory mitigating circumstance found in N.C.G.S. § 15A-2000(f)(6). In

doing so, the majority overlooks the complete lack of evidence linking defendant’s

purported intellectual impairment, mental disorders, and marital strife to his

homicidal conduct. The majority also ignores the evidence showing that defendant’s

actions were carefully premeditated and that he took many steps to conceal his

identity as the perpetrator, evidence that would clearly prevent any reasonable juror

from finding the existence of the (f)(6) mitigating circumstance. For those reasons,

the majority’s holding is unsupported by the relevant sentencing statute and is

inconsistent with the vast majority of our decisions interpreting it.    I therefore

respectfully dissent.

      During the sentencing phase of a capital case, the trial court must submit a

statutory mitigating circumstance to the jury if the defendant has presented

                                          -1-
                                 STATE V. RODRIGUEZ

                                 Martin, C.J., dissenting



“substantial evidence” of that circumstance. State v. Watts, 357 N.C. 366, 377, 584

S.E.2d 740, 748 (2003) (quoting State v. Fletcher, 354 N.C. 455, 477, 555 S.E.2d 534,

547 (2001), cert. denied, 537 U.S. 846, 123 S. Ct. 184 (2002)), cert. denied, 541 U.S.

944, 124 S. Ct. 1673 (2004). Evidence of a statutory mitigating circumstance is

“substantial” only if “a juror could reasonably find that the circumstance exists based

on the evidence.” Id. (quoting State v. Kemmerlin, 356 N.C. 446, 478, 573 S.E.2d 870,

892 (2002)). The burden of producing substantial evidence to support the submission

of a mitigating circumstance rests with the defendant. Id.

      The (f)(6) mitigating circumstance states: “The capacity of the defendant to

appreciate the criminality of his conduct or to conform his conduct to the

requirements of law was impaired.” N.C.G.S. § 15A-2000(f)(6) (2017). It therefore

“embraces two types of disability, one diminishing a person’s ability to appreciate the

criminal nature of his conduct, and the other diminishing a person’s ability to control

himself.” State v. Price, 331 N.C. 620, 630-31, 418 S.E.2d 169, 175 (1992), judgment

vacated on other grounds, 506 U.S. 1043, 113 S. Ct. 955 (1993). But in both of these

instances, a defendant must produce evidence that his capacity “to appreciate the

criminality of his conduct or to conform his conduct to the requirements of law was

impaired.” N.C.G.S. § 15A-2000(f)(6) (emphasis added). In other words, the (f)(6)

mitigating circumstance does not encompass every instance in which a defendant

presents evidence of an intellectual impairment or mental disorder. See State v.

Syriani, 333 N.C. 350, 395, 428 S.E.2d 118, 142-43 (“[The (f)(6) mitigating]

                                           -2-
                                 STATE V. RODRIGUEZ

                                 Martin, C.J., dissenting



circumstance has only been found to be supported in cases where there was evidence,

expert or lay, of some mental disorder, disease, or defect, . . . to the degree that it

affected the defendant’s ability to understand and control his actions.” (emphasis

added)), cert. denied, 510 U.S. 948, 114 S. Ct. 392 (1993). Instead, a defendant’s

intellectual impairment or mental disorder must have actually impaired his capacity

to appreciate the criminality of his conduct or to conform his conduct to the

requirements of law—and the burden is on the defendant to produce evidence

establishing this link.

      Even assuming for the sake of argument that defendant did, in fact, have an

intellectual impairment, as well as two mental disorders (namely, posttraumatic

stress disorder and chronic depression), and that he was experiencing marital

problems with Maria at the time of the murder, the mere presence of those conditions,

without more, does not require submission of the (f)(6) mitigating circumstance. See

id. Despite the clear requirement to do so, defendant did not present any evidence

demonstrating a link between those conditions, on the one hand, and his ability to

appreciate the criminality of his conduct or to conform his conduct to the

requirements of law, on the other. To support its conclusion that the trial court

should have submitted the (f)(6) mitigating circumstance, the majority conspicuously

forgoes any substantive analysis of how or to what extent defendant’s purported

intellectual impairment, mental disorders, or marital strife affected his capacity to

appreciate the criminality of his conduct or to conform his conduct to the

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                                 STATE V. RODRIGUEZ

                                  Martin, C.J., dissenting



requirements of the law. And this is for good reason: the record contains no evidence

that would support an analysis linking defendant’s purported conditions to his

homicidal conduct.

      At trial, Judge Albright recognized the evidentiary inadequacy of defendant’s

request for submission of the (f)(6) mitigating circumstance, noting that defendant

had failed to present “any testimony to support” that instruction. Despite Judge

Albright’s astute handling of this issue, the majority tries to justify its holding by

pointing to the testimony of Dr. Antonio Puente, one of defendant’s expert witnesses,

who testified that defendant had a very poor ability to “reason and think.” But this

testimony, without more, does not show that defendant’s ability to appreciate the

criminality of his conduct was impaired. Nor does this testimony, without more,

suggest that defendant had an impaired ability to conform his conduct to the

requirements of the law. Poor reasoning skills do not necessarily impair one’s ability

to control his actions or to know what the law requires. Requiring the submission of

the (f)(6) mitigating circumstance in every instance in which a defendant has poor

reasoning skills, moreover, would likely mean that the mitigating circumstance

would need to be submitted in every case in which the defendant has an intellectual

impairment—an approach that this Court has clearly rejected and that would be

inconsistent with the limits that the statutory text of subsection (f)(6) itself imposes.

      Notably, the only testimony directly relating to defendant’s ability to

appreciate the criminality of his conduct or to conform his conduct to the

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                                  Martin, C.J., dissenting



requirements of law weighs in favor of the trial court’s decision not to submit the (f)(6)

mitigating circumstance to the jury. Dr. Selena Sermeño, another one of defendant’s

experts, testified that defendant generally seemed to be able to discern right from

wrong. This was evident, Dr. Sermeño testified, by defendant’s refusal to accept a

gun that a soldier offered to him during the El Salvadorian civil war, when defendant

was eleven years old. This testimony likely would not, by itself, be enough to foreclose

submission of the (f)(6) mitigating circumstance to the jury, see State v. Johnson, 298

N.C. 47, 68, 257 S.E.2d 597, 613 (1979), at least when a defendant shows a causal

nexus between his intellectual impairment and his ability to appreciate the

criminality of his conduct or conform his conduct to the requirements of the law. But

here, as the trial court recognized, defendant did not present evidence linking his

purported intellectual impairment to his homicidal conduct.

      Defendant similarly failed to present any evidence that linked his alleged

posttraumatic stress disorder to his homicidal conduct. Two of defendant’s own

experts—Dr. Sermeño and Dr. Moira                 Artigues—testified that    defendant’s

posttraumatic stress disorder did not manifest itself through irritability or violent

outbursts.   Rather, it manifested itself through defendant’s impaired ability to

express strong emotions verbally or through body language, as well as poor sleep,

flashbacks, difficulty with smells and sudden noises, and difficulty with memories.

None of these symptoms have anything to do with defendant’s ability to appreciate

the criminality of his conduct or conform his conduct to the requirements of the law.

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                                Martin, C.J., dissenting



And the record is similarly devoid of any explanation as to how defendant’s ongoing

marital problems or purported chronic depression impaired his ability to appreciate

the criminality of his conduct or to conform his conduct to the requirements of the

law.

       Because evidence of any of these links was lacking, a jury would have had to

go beyond the evidence presented and speculate in order to conclude that the (f)(6)

mitigating circumstance may have applied here. And when the evidence is such that

a jury would have to base its finding of a mitigating circumstance “solely upon

speculation and conjecture, not upon substantial evidence,” submission of the

instruction to the jury is “unreasonable as a matter of law.” State v. Anderson, 350

N.C. 152, 183, 513 S.E.2d 296, 315 (quoting State v. Daniels, 337 N.C. 243, 273, 446

S.E.2d 298, 316-17 (1994), cert. denied, 513 U.S. 1135, 115 S. Ct. 953 (1995)), cert.

denied, 528 U.S. 973, 120 S. Ct. 417 (1999).

       Even assuming for the sake of argument that defendant had produced evidence

linking his purported intellectual impairment, mental disorders, and marital

problems to his homicidal conduct, the record contains ample evidence that would

rebut any reasonable inference that defendant had an impaired ability to appreciate

the criminality of his conduct or conform his conduct to the requirements of the law.

As noted earlier, a statutory mitigating circumstance must be submitted only if a

juror could reasonably find its existence based on the evidence. Watts, 357 N.C. at

377, 584 S.E.2d at 748 (quoting Kemmerlin, 356 N.C. at 478, 573 S.E.2d at 892). The

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                                   Martin, C.J., dissenting



majority correctly recites this standard but then misapplies it.            Although the

majority’s analysis seems to suggest otherwise, nowhere in our precedents have we

required our trial courts to view all evidence pertaining to the submission of the (f)(6)

mitigating circumstance in the light most favorable to the defendant, resolving

ambiguities and inconsistencies in his favor. And we have never, until today, directed

our trial courts to ignore the presence of overwhelming evidence that refutes any

suggestion that a defendant had an impaired capacity to appreciate the criminality

of his conduct or conform his conduct to the requirements of the law.

       In fact, our precedents clearly show the opposite.           We have repeatedly

recognized that a trial court may, in its determination of whether to submit the (f)(6)

mitigating circumstance, consider evidence rebutting a defendant’s argument that

the instruction should be submitted to the jury. For instance, we have held that a

trial court properly did not submit the (f)(6) mitigating circumstance when a

defendant’s academic performance and operation of a gambling business while in

prison were inconsistent with his argument that he had an impaired ability to

“understand and control his actions.” State v. Braxton, 352 N.C. 158, 215, 531 S.E.2d

428, 461 (2000), cert. denied, 531 U.S. 1130, 121 S. Ct. 890 (2001); see also State v.

Strickland, 346 N.C. 443, 464, 488 S.E.2d 194, 206 (1997) (“There was no evidence

that consumption of this alcohol so impaired defendant as to . . . affect[ ] his ability

to control his actions. In fact, there was direct evidence to the contrary.”), cert. denied,

522 U.S. 1078, 118 S. Ct. 858 (1998).

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                                 Martin, C.J., dissenting



      In a line of recent cases, this Court has placed particular emphasis on whether

a defendant’s acts “demonstrate that [he] was aware that his acts were criminal,”

therefore negating any suggestion that the defendant’s capacity to appreciate the

criminality of his conduct was impaired. See State v. Polke, 361 N.C. 65, 72, 638

S.E.2d 189, 194 (2006), cert. denied, 552 U.S. 836, 128 S. Ct. 70 (2007). For instance,

we have held that the trial court properly declined to submit the (f)(6) mitigating

circumstance to the jury when the evidence showed that the defendant lured the

victim to the scene of the murder, disposed of the murder weapon, and had false

identification when he was apprehended. State v. Gainey, 355 N.C. 73, 104, 558

S.E.2d 463, 483, cert. denied, 537 U.S. 896, 123 S. Ct. 182 (2002). Based on this

evidence, the Court reasoned that the defendant “fully underst[ood] that his acts were

criminal.” Id. at 104, 558 S.E.2d at 483. In another case, this Court held that the

trial court properly did not submit the (f)(6) mitigating circumstance when a

“defendant’s initial lies to police about his involvement in the murder and his washing

and disposal of the murder weapon . . . tend[ed] to show that [the] defendant fully

appreciated the criminality of his conduct.” State v. Badgett, 361 N.C. 234, 258, 644

S.E.2d 206, 220 (citing State v. Golphin, 352 N.C. 364, 476, 533 S.E.2d 168, 240

(2000), cert. denied, 532 U.S. 931, 121 S. Ct. 1380 (2001)), cert. denied, 552 U.S. 997,

128 S. Ct. 502 (2007).

      Here, defendant’s conduct surrounding the murder of Maria demonstrates that

he had a full grasp of the gravity and criminality of his actions. And this same

                                           -8-
                                 STATE V. RODRIGUEZ

                                 Martin, C.J., dissenting



evidence showing a careful, deliberate course of action indicates that defendant’s

mental faculties were not impaired during the course of the murder. While the

majority recognizes the brutal nature of this murder, it utterly fails to recognize the

legal significance of all of the preemptive steps that defendant took to conceal his

identity as the perpetrator.

      Defendant’s actions when he came to Maria’s apartment shortly before the

murder provide ample evidence of defendant’s meticulous attempts to conceal his

crime. When defendant started arguing with Maria inside her bedroom and Maria

called for help, the children found that the bedroom door was closed and locked. He

also told the children not to call the police and took Maria’s cell phone away so that

they could not call for help after he assaulted their mother.       After ending the

argument with Maria by incapacitating her, defendant transported Maria from the

apartment to his car by carrying her over his shoulder, all the while covering her face

with her work uniform so that the children could not see the condition of their

mother’s face. At that time, defendant told the children that Maria had hurt herself

on some furniture and that he was going to take her to the hospital. He told a

concerned neighbor a similar story and added that the children were not allowed to

visit Maria.

      Defendant, moreover, took a number of additional steps to avoid being

identified as the perpetrator. For instance, defendant returned to Maria’s apartment

and attempted to clean up a pool of Maria’s blood that had soaked into the carpet. He

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                                Martin, C.J., dissenting



lied to their children, to his friend, and to investigating officers about what had

happened during his encounter with Maria in the bedroom. Soon after the murder,

when defendant was with the children, one of them attempted to check the trunk of

defendant’s car to see if Maria was there. When that child saw Maria’s work uniform

in defendant’s trunk, defendant quickly ran over and closed the trunk to try to

prevent his children from investigating further. Defendant told his children that

Maria’s uniform was there because the doctor had given it to him. The evidence also

suggests that defendant sent three text messages from Maria’s cell phone trying to

convince one of Maria’s friends that she had run away with a new boyfriend to Spain.

      Most notably, however, defendant severed Maria’s head from her body after

the murder and hid Maria’s remains in two separate, heavily wooded areas. Maria’s

skull was not found for another two and a half years after the rest of her body was

discovered. The authorities never recovered Maria’s phone, the clothing that she

wore on the night of the murder, or the object used to remove her head, suggesting

that defendant carefully hid them in his effort to thwart a future prosecution.

      Defendant’s actions before, during, and after the murder indicate careful

deliberation and an attempt to evade punishment, rebutting any reasonable inference

that defendant had an impaired capacity to appreciate the criminality of his conduct.

And these same actions—especially those leading up to the murder—bear no

resemblance to the frenzied, hectic behavior expected of a person with an impaired

capacity to conform his conduct to the requirements of the law.        Nor are they

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                                 Martin, C.J., dissenting



consistent with a “child-like thought process[ ]” or a “limited ability to think and

reason beyond the immediate moment,” as defendant argues. And despite what the

majority suggests, defendant’s actions demonstrate far, far more than a mere

“recognition of the wrongfulness of his conduct.”

      Rather than acknowledging the legal significance of defendant’s acts

surrounding the murder and the lack of evidence linking defendant’s purported

mental conditions to his homicidal conduct, the majority instead focuses its analysis

on two cases that are inconsistent with the language of the (f)(6) mitigating

circumstance, and which, as a result, have become outliers in our jurisprudence.

Specifically, the majority rests the crux of its argument on State v. Stokes, 308 N.C.

634, 304 S.E.2d 184 (1983), and State v. Fullwood, 329 N.C. 233, 404 S.E.2d 842

(1991), which, according to the majority, dispel any requirement that a defendant

present evidence of a nexus between a defendant’s mental condition and the

defendant’s homicidal conduct.

      To begin with, it is worth noting that Stokes and Fullwood are inconsistent

with cases that were decided before they were. In State v. Goodman, 298 N.C. 1, 257

S.E.2d 569 (1979), this Court held that if a defendant was intoxicated at the time of

the murder, but not to a degree that his capacity to appreciate the criminality of his

conduct or conform his conduct to the requirements of the law was impaired, the (f)(6)

mitigating circumstance should not be submitted to the jury. Id. at 32-33, 257 S.E.2d

at 589. This Court reaffirmed that principle in a similar case decided three years

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                                STATE V. RODRIGUEZ

                                Martin, C.J., dissenting



later, State v. Williams, 305 N.C. 656, 292 S.E.2d 243, cert. denied, 459 U.S. 1056,

103 S. Ct. 474 (1982). In Williams, this Court held that evidence showing that the

defendant drank alcohol on the night of a murder, without evidence showing “that

[the defendant’s] capacity to appreciate the criminality of his conduct was impaired

by [that] alcohol,” was insufficient to support submission of the (f)(6) mitigating

circumstance. Id. at 687, 292 S.E.2d at 262. These cases show that a defendant must

present evidence of a link to require submission of the (f)(6) factor to a jury and

therefore show that Stokes and Fullwood have been outliers in our jurisprudence ever

since they were decided.

      More recent cases, moreover, have implicitly overruled Stokes and Fullwood

(or, alternatively, have confirmed that they were wrongly decided under preexisting

caselaw when they were handed down). In State v. Hill, 347 N.C. 275, 493 S.E.2d

264 (1997), cert. denied, 523 U.S. 1142, 118 S. Ct. 1850 (1998), we considered a case

in which the defendant exhibited personality traits of “emotional and social

alienation,” “mild depression,” “poor impulse control,” and “subaverage intelligence.”

Id. at 301-02, 493 S.E.2d at 279. But we held that the trial court was correct not to

submit the (f)(6) mitigating circumstance to the jury because “the testimony did not

establish that [the] defendant’s personality characteristics affected his ability to

understand and control his actions.” Id. at 302, 493 S.E.2d at 280 (emphases added).

Similarly, in State v. Gainey, expert testimony established that the defendant

suffered from “moderately severe to severe mixed personality disorder . . . , with

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                                 Martin, C.J., dissenting



paranoid and schizoid features which tended to make him restless and impulsive.”

355 N.C. at 103-04, 558 S.E.2d at 483. But, consistent with our holding in Hill, we

held that this testimony, standing alone, did not amount to evidence that the

defendant’s capacity to appreciate the criminality of his conduct or conform his

conduct to the requirements of the law was impaired. See id.

      The list goes on. In State v. Kemmerlin, the defendant presented evidence that

she had “borderline personality disorder” and “major depressive disorder.”    356 N.C.

at 480, 573 S.E.2d at 893. The defendant was additionally concerned that her stepson

was going to sexually abuse her daughter, and, because of the defendant’s own

experiences suffering sexual abuse, she was “exquisitely and overly attuned to sexual

issues.” Id. at 479, 573 S.E.2d at 893. But this evidence was insufficient to support

submission of the (f)(6) mitigating circumstance to the jury because the defendant’s

suffering, according to her own expert witness, “was not to the level of impairing her

ability to appreciate the wrongfulness” of her conduct. Id. at 481, 573 S.E.2d at 893.

      To highlight the distinction between this case and cases in which the trial court

properly instructed the jury on the (f)(6) mitigating circumstance, we need to look no

further than the majority’s own citations. In State v. Hooks, 353 N.C. 629, 548 S.E.2d

501 (2001), cert. denied, 534 U.S. 1155, 122 S. Ct. 1126 (2002), the defendant suffered

from chronic substance abuse and underdeveloped skills for “emotional expression,

social connection, and adult functioning.” Id. at 640, 548 S.E.2d at 509. Although it

was not squarely reviewing the propriety of the trial court’s submission of the (f)(6)

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                                    Martin, C.J., dissenting



mitigating circumstance,1 this Court emphasized the testimony of the defendant’s

expert witness: “[The defendant’s] substance dependence and the impoverished skills

for adult functioning combined such that his ability to think through his behavior, to

consider the consequences of his actions, to reasonably plan or to understand and

appreciate the connection between his actions and consequent events would have been

impaired at the time of the offense.” Id. (emphases added). In other words, as this

Court recognized, the evidence indicated much more than the mere presence of a

mental impairment; rather, expert testimony directly established a nexus between

the defendant’s impairments and how they manifested themselves, and therefore, a

jury could find that the defendant was not able to fully appreciate the criminality of

his conduct. See id.

       As this Court has repeatedly recognized, then, evidence that a defendant

merely has an intellectual impairment or mental disorder is not enough to require

the trial court to submit the (f)(6) mitigating circumstance to the jury. Instead, the

defendant has the burden of linking his intellectual impairment or mental disorder

to his homicidal conduct. If a defendant does not produce evidence of this link, the



       1 The discussion of the (f)(6) mitigating circumstance in Hooks was dictum; the Court
discussed the (f)(6) mitigating circumstance, which the trial court did submit to the jury, only
to contrast the trial court’s decision not to submit a different mitigating circumstance. Id. at
639-41, 548 S.E.2d at 508-09. Even though the Court’s discussion of the (f)(6) mitigating
circumstance was brief and not directly relevant to its holding, however, it is still helpful to
show how the defendant in that case presented evidence linking his mental conditions to his
homicidal conduct—which therefore justified the trial court’s submission of the (f)(6)
mitigating circumstance to the jury.

                                             -14-
                                 STATE V. RODRIGUEZ

                                  Martin, C.J., dissenting



jury will not be able to infer the presence of the (f)(6) mitigating circumstance. When

it cannot, the trial court should not submit that instruction to it.

      In sum, the language of the (f)(6) mitigating circumstance and the weight of

this Court’s caselaw interpreting that statutory provision require a causal nexus

between a defendant’s mental condition and his capacity to appreciate the criminality

of his conduct or conform his conduct to the requirements of the law. Here, defendant

presented no evidence of any such link. And by selectively relying on Stokes and

Fullwood—which are clear outliers in our jurisprudence—the majority is dictating a

change in law that has been relatively well settled for decades.         See Payne v.

Tennessee, 501 U.S. 808, 827, 111 S. Ct. 2597, 2609 (1991) (noting that the “consistent

development of legal principles . . . contributes to the actual and perceived integrity

of the judicial process”). In any event, defendant’s conduct surrounding the murder

dispels any doubt that defendant freely chose not to conform his conduct to the law

and fully appreciated the criminality of his conduct. I therefore respectfully dissent.

      Justice NEWBY joins in this dissenting opinion.




                                           -15-
