The trial court erred by submitting the (f)(4) mitigating circumstance (defendant was an accomplice in or accessory to the capital felony committed by another person and his participation was relatively minor) to the jury where it was not supported by substantial evidence. However, in the absence of “extraordinary facts,” the court concluded that the error was harmless.

(1) In this capital case, the court rejected the defendant’s argument that the trial court deprived him of his state and federal constitutional right to a trial by a fair and impartial jury by prohibiting defense 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. Defense counsel informed the trial court that they wanted to ask the jurors whether they can follow the law with regard to mental retardation and that in order to make an adequate inquiry, defense counsel would need to tell the jurors about the relevant law. The trial judge determined that the defense would be limited to inquiring into the jurors’ ability to follow the applicable law. When the jurors returned to the courtroom, defense counsel told the jurors that mental retardation is a defense to the death penalty and that it is defined, among other things, as having a low IQ. Both defense counsel and the prosecutor asked prospective jurors numerous questions related to intellectual disability issues. Although the trial court told defense counsel to limit their questioning with respect to intellectual disability issues to inquiry as to whether members of the jury could follow the law as given to them by the court, the defendant was allowed, without objection, to explain to two different jury panels, at a time when all prospective jurors were present, that mental retardation is a defense to the death penalty. Additionally, defense counsel asked prospective jurors about their experiences with intellectually disabled persons, 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 given in the trial court’s instructions. When considered in conjunction with the fact that defense counsel was allowed to tell jurors that mental retardation was a defense, the questions defense counsel were allowed to pose sufficiently permitted counsel to determine whether jurors could fairly consider and follow the trial court’s instruction concerning whether the defendant should be exempted from the imposition of the death penalty on the basis of any intellectual disabilities. The limitations that the trial court put on defense counsel’s questioning of prospective jurors concerning intellectual disability issues was not an abuse of discretion and did not render the trial fundamentally unfair.

(2) The court rejected the defendant’s argument 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. Although the 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 tending to support a contrary determination. The relative credibility of the testimony offered by the various experts concerning the nature and extent of the defendant’s intellectual limitations was a matter for the jury. Because the record reveals a conflict in the evidence concerning the extent to which the defendant was intellectually disabled, the trial court did not abuse its discretion by failing to set aside the jury’s verdict.

(3) The trial court committed reversible error at the defendant’s capital sentencing proceeding by failing to instruct the jury with respect to the statutory mitigating factor in G.S. 15A-2000(f)(6), which addresses the extent to which a defendant’s capacity to appreciate the criminality of his conduct or to conform his conduct to the law was impaired. The trial judge is required to instruct the jury to consider any mitigating circumstances which have adequate evidentiary support and the trial court has no discretion in determining whether to submit a mitigating circumstance when substantial evidence in support of it has been presented. Citing evidence in the record, the court held that it contains ample support for the submission of the mitigating circumstance at issue. The court went on to find that the trial court’s error was not harmless beyond a reasonable doubt. The court ordered a new capital sentencing hearing

The defendant was convicted of first-degree murder and sentenced to death. The defendant was eighteen years and five months old when he committed the murder. The court rejected the defendant’s argument that Roper v. Simmons, 543 U.S. 551 (2005) (Eighth Amendment prohibits execution of one who commits murder before eighteenth birthday), required it to conclude that the defendant’s age had mitigating value as a matter of under the G.S. 15A-2000(f)(7) (defendant’s age when murder committed) mitigating circumstance.