An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                  NO. COA14-141
                         NORTH CAROLINA COURT OF APPEALS

                              Filed: 5 August 2014


STATE OF NORTH CAROLINA

       v.                                     Columbus County
                                              No. 11 CRS 51346
JERRY LEE MOORE, JR.



       Appeal by defendant from judgment entered 2 August 2013 by

Judge   Douglas     B.    Sasser   in   Columbus       County   Superior    Court.

Heard in the Court of Appeals 5 June 2014.


       Attorney General Roy Cooper, by Assistant Attorney General
       David N. Kirkman, for the State.

       Appellate Defender Staples Hughes, by Assistant Appellate
       Defender Charlesena Elliot Walker, for defendant-appellant.


       HUNTER, JR., Robert N., Judge.


       Defendant Jerry Lee Moore, Jr. (“Defendant”) appeals from a

jury    verdict     finding     him     guilty    of     first-degree      murder.

Defendant argues the pattern jury instruction used by the trial

court was prejudicial and that his conviction must be vacated.

After careful review, we hold this issue was previously decided

adversely to Defendant in State v. Carroll, 356 N.C. 526, 573
                                            -2-
S.E.2d 899 (2002).            Accordingly, we hold that the trial court

did not err.

                         I. Facts & Procedural History

    On 8 July 2011               the Columbus County Grand Jury indicted

Defendant on a charge of first-degree murder of Samuel Odell

Hampton, III (“Hampton”).              Defendant, an indigent, was appointed

counsel       and     asserted      the     defense      of   diminished      capacity.

Defendant stood trial on 29 July 2013 through 2 August 2013 in

Columbus County Superior Court.                  The record and trial transcript

tended to show the following facts.

    Special Agent Adrienne Harvey (“Agent Harvey”) said she was

informed of a shooting at the Hide Away Club around 4 a.m. on 23

April 2011.          Defendant surrendered himself to local police at

the jail near the Columbus County Sherriff’s Office.                               Agent

Harvey    arrived       at    the    jail       around   5:15    a.m.   to    interview

Defendant.          Defendant was read his Miranda rights, voluntarily

signed    a    Miranda       waiver,      and    then    Agent   Harvey      interviewed

Defendant.          According to Agent Harvey, Defendant understood the

questions asked in the interview and was clear and coherent.

Defendant told Agent Harvey that when he shot Hampton he started

to pull the gun out of his pocket, realized the safety was on,
                                          -3-
lowered it, turned off the safety, and then pointed the gun at

Hampton.

       After     the   interview,       Defendant     helped      Agent    Harvey    and

other officers locate and recover the .22 caliber pistol used in

the shooting.          Defendant led officers to a wooded location to

find    the    weapon.         Agent    Harvey     also    testified       that   seven

projectiles were recovered during the autopsy of Hampton.                             Of

these seven shell casings, Agent Harvey stated five were fired

and ejected from the .22 caliber handgun that Defendant used.

       Assistant       Chief    Medical     Examiner       Dr.     Johnathan      David

Privette       (“Dr.    Privette”)        testified       next     about     Hampton’s

autopsy, Hampton’s gunshot wounds, and the range at which the

gunshot wounds were inflicted.               Dr. Privette testified that the

cause    of    death    for    Hampton     was     multiple      gunshot    wounds   to

Hampton’s head, each of which alone had the potential to be

fatal.        After Dr. Privette’s testimony, the State rested its

case.    Defendant made a motion to dismiss at the close of the

State’s evidence, which was denied by the trial court.

       Defendant testified next at trial, stating he had been in

two fights with Hampton prior to 23 April 2011.                     The first fight

was about thirty days prior to the 23 April 2011 shooting; at

this    fight,    Hampton      hit     Defendant    on    the    head   from   behind,
                                         -4-
scaring      defendant.         Defendant      testified        the    second        fight

occurred around a week after the first fight.                         At this fight,

Hampton “got close to [Defendant and] he had his fists balled

up[.]”       Hampton then started backing away.                   Defendant stated

this event “sort of” scared him and that he had stolen a gun to

protect himself from Hampton.

       Defendant testified on his own behalf and denied that he

ever said he wanted to kill Hampton or that he ever intended to

kill Hampton before the shooting on 23 April 2011.                       However, on

cross,    when     asked   “[d]id     you    not   mean    to    kill    [Hampton],”

Defendant responded “[e]videntially [sic], yes.”

       Defendant also testified about his scholastic performance.

Defendant was placed in a special education program from the

time that he was in the fifth grade until he graduated from high

school.       Defendant       later   attended     Lenoir   Community         College,

where he played basketball.            Defendant eventually dropped out of

college      due   to   his    poor    grades.       Defendant         said     he     has

difficulties with reading and writing.

       Defendant’s      mother    Angelia      Kinlaw     Hatcher       (“Angelia”),

testified next, stating that Defendant was always “slow” and

that   she    assisted     him    with      classwork.      She       repeated        that

Defendant had been in special education classes during most of
                                         -5-
grade school and played basketball at Lenoir Community College

before dropping out due to his poor grades.                 Angelia testified

that Defendant was shot in 2009 and thereafter “went into a deep

depression.”        Angelia stated that Defendant engaged in strange

behavior   such     as    wearing     long-sleeved    shirts     in   the    summer,

being disrespectful, and talking to himself.

      Defendant’s         final   witness,      neuropsychologist        Christine

Herfkens, Ph.D. (“Dr. Herfkens”), testified at trial that she

had    diagnosed          Defendant      with     “borderline         intellectual

functioning.”        Dr.    Herfkens    said    Defendant’s      overall     IQ   was

seventy-two, two points above the level of mental retardation.

Defendant’s verbal comprehension was sixty-six which put him at

the first percentile for his age.               Defendant’s processing speed

put him in the fifth percentile for his age.                    Both Defendant’s

verbal comprehension and processing speed were in the range of

impairment.        Dr. Herfkens also testified that while Defendant’s

verbal reasoning skills were low, his nonverbal analysis test

results    were     strong.       Defendant’s    ability   to    reason      in   the

abstract     and     to    reason     pragmatically     were     in    the    sixth

percentile    (also       considered    impaired)    and   Dr.    Herfkens        said

these attributes          could potentially affect his decision-making

processes.
                                        -6-
      Dr. Herfkens testified it was her opinion that Defendant

was capable of making the decision to shoot someone, but that

Defendant’s impairments may “render him incapable” of making a

rational decision.            Additionally, Dr. Herfkens testified that

individuals who are incarcerated tend to perform better on IQ

tests while incarcerated due to their structured environment.

Thus,      Dr.    Herfkens     opined   that    Defendant    may    have    been

performing at a higher level during his IQ tests than at the

time of the shooting.            Dr. Herfkens testified that Defendant

faked a suicide attempt in order to get privileges and be moved

out   of    his    holding     cell.    After    Dr.   Herfken’s    testimony,

Defendant rested his case and renewed his motion to dismiss,

which was denied.

      During the jury instruction conference, Defendant requested

that the court deliver the pattern jury instruction concerning

diminished        capacity.       The   court   instructed    the    jury    in

accordance with N.C.P.I.—Crim. 305.11 (2009), the pattern jury

instruction for lack of mental capacity for first-degree murder,

as follows:

             You may find there is evidence which tends
             to show that the defendant lacked mental
             capacity at the time of the acts alleged in
             this case. If you find the defendant lacked
             mental capacity, you should consider whether
             this condition affected the defendant’s
                               -7-
          ability to formulate a specific intent which
          is required for conviction of first degree
          murder on the basis of malice, premeditation
          and deliberation.

          In order for you to find the defendant
          guilty of first degree murder on that basis,
          you must find beyond a reasonable doubt that
          the defendant killed the deceased with
          malice and in the execution of an actual,
          specific intent -- in the execution of an
          actual specific intent to kill formed after
          premeditation and deliberation.

          If as a result of lack of mental capacity
          the defendant did not have the specific
          intent to kill the deceased formed after
          premeditation     and   deliberation,    the
          defendant is not guilty of first degree
          murder on the basis of malice, premeditation
          and deliberation.

          Therefore, I charge that if upon considering
          the evidence with respect to the defendant’s
          lack   of    mental  capacity,  you   have   a
          reasonable doubt as to whether the defendant
          formulated the specific intent required for
          conviction of first degree murder on the
          basis     of    malice,   premeditation    and
          deliberation, you will not return a verdict
          of guilty of first degree murder on that
          basis.

    The jury returned a “unanimous verdict that the defendant

is guilty of first-degree [murder] both on the basis of malice,

premeditation and deliberation and on the basis of lying in

wait.”   Defendant was sentenced to life in prison without the

possibility of parole.    Following the verdict, Defendant gave

oral notice of appeal in open court.
                                         -8-
                 II. Jurisdiction & Standard of Review

       Defendant appeals as of right from a decision of the trial

court    pursuant   to    N.C.    Gen.    Stat.      §§ 7A-27(b),      15A-1444(a)

(2013).

       Defendant argues that the trial court’s diminished capacity

jury     instruction      “constituted          plain      error   because      the

instruction was erroneous; misleading; and confusing and placed

a higher burden upon [Defendant] than he was required by law to

bear.”

       The North Carolina Supreme Court “has elected to review

unpreserved issues for plain error when they involve either (1)

errors in the judge’s instructions to the jury, or (2) rulings

on the admissibility of evidence.”               State v. Gregory, 342 N.C.

580, 584, 467 S.E.2d 28, 31 (1996).                     As Defendant failed to

object to the jury instructions that the trial court delivered,

we   review    Defendant’s       challenge      to   the   diminished    capacity

instruction for plain error.

       Plain   error    arises    when    the    error     is   “‘so   basic,   so

prejudicial, so lacking in its elements that justice cannot have

been done[.]’”         State v. Odom, 307 N.C. 655, 660, 300 S.E.2d

375, 378 (1983) (citation and quotation marks omitted).                      “Under

the plain error rule, defendant must convince this Court not
                                       -9-
only that there was error, but that absent the error, the jury

probably    would    have   reached    a   different    result.”        State    v.

Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993).

                                III. Analysis

      Defendant      argues    that    the    trial     court’s      instruction

regarding    whether     Defendant    “lacked      mental   capacity”      and   its

reference to Defendant’s “lack of mental capacity” which was

derived from N.C.P.I.—Crim. 305.11 improperly raised the burden

of   proving    diminished     capacity    for   first-degree       murder.      We

disagree.

      Defendant’s argument presents an argument resolved in State

v.   Carroll,     356   N.C.   526,   540,   573    S.E.2d   899,    909    (2002)

(citing State v. Mash, 323 N.C. 339, 344, 372 S.E.2d 532, 535

(1988)).     The defendant in Carroll similarly asserted that the

trial court’s reference to a “lack of capacity” was prejudicial

in that it raised the burden on the defendant to prove he was

completely without capacity to form the required intent before

the jury could consider the impact of the defendant’s capacity

on his ability to form the mens rea requirement of first-degree

murder.     Id.     Our Supreme Court rejected this argument for two

separate reasons: (i) the use of this pattern jury instruction

had already been upheld in Mash and (ii) the defendant had used
                                             -10-
the    language    “lack       of    mental       capacity”         in    his     own    closing

argument.      Id.; see also State v. Roache, 358 N.C. 243, 304, 595

S.E.2d    381,    420    (2004)        (holding       N.C.P.I.—Crim.            305.11       is   an

accurate statement of the law).

       Similarly,       Defendant         was     the     party       who       requested         the

delivery of the          pattern       jury instruction for                 lack of mental

capacity.         Carroll,       356      N.C.     at     540,      573     S.E.2d      at    909.

Defendant      asked     the    trial      court      “to     add    diminished         capacity

instruction,       standard          instruction            from      the       Pattern       Jury

Instruction.”          After the trial court told Defendant                              that it

would    deliver    N.C.P.I.         Crim.        305.11,      the    trial          court   asked

Defendant if that was the instruction he sought.                                     Defendant’s

counsel responded affirmatively, stating “Yes, sir, that’s what

we    want.”      Defendant         did    not     object      when       the    pattern      jury

instruction was given.

       As N.C.P.I.—Crim. 305.11 has been explicitly adopted by our

Supreme    Court       and     Defendant        was     the    party        requesting        this

instruction,       the       trial        court     did       not     err       in     its    jury

instructions.

                                     IV. Conclusion

       For the reasons stated above, we find

       NO PLAIN ERROR.
                         -11-
Judges ERVIN and DAVIS concur.

Report per Rule 30(e).
