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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
STATE OF NORTH CAROLINA v. TONY EARL STATEN
Filed: 16 August 2005
1. Constitutional Law--capacity to stand trial--failure to sua sponte grant competency
The trial court was not required to sua sponte grant defendant a competency hearing
during defendant's January 2003 trial for first-degree felony murder and armed robbery, because:
(1) evidence before the trial court was not so substantial as to indicate defendant was mentally
incompetent when throughout the trial proceedings defendant acted in a manner exhibiting
competence; (2) in the instant case, with the exception of the initial screening, defendant had no
evaluations finding him to be incompetent to proceed to trial; (3) neither defendant's behavior nor
demeanor implicated the necessity of a bona fide doubt inquiry even though defendant suffered
from mental retardation and intellectual deficiencies throughout his life with intermittent mental
illness when defendant had the capacity to comprehend his position, to understand the nature and
object of the proceedings against him, to conduct his defense in a rational manner, and to assist
his counsel; and (4) where, as here, defendant has been examined relative to his capacity to
proceed and all evidence before the court indicates that he has that capacity, he is not denied due
process by the trial court's failure to hold a competency hearing.
2. Criminal Law--insanity--directed verdict
The trial court did not err in a first-degree felony murder and armed robbery case by
denying defendant's motion for a directed verdict on the issue of insanity because if evidence of
insanity is offered by defendant, even if uncontroverted, the credibility of that testimony is for the
jury and thus precludes the entry of a directed verdict for defendant on insanity.
3. Robbery--armed--instruction--diminished capacity--specific intent
The trial court did not err by denying defendant's request for a special instruction on
diminished capacity for intent to commit armed robbery, because defendant failed to show he did
not have the specific intent to permanently deprive the victim of his car.
4. Robbery--armed_heart attack_use of hands--lesser-included offense of common law
The evidence was insufficient to support defendant's conviction of armed robbery and the
case is remanded for entry of conviction on the lesser-included offense of common law robbery,
because: (1) autopsy reports indicated the victim died of a heart attack; (2) a forensic pathologist
testified that the victim sustained minor cuts and abrasions prior to his death that were not life
threatening, and that the victim's death was caused by a combination of the victim's weak heartand the stress caused by defendant stealing his car; and (3) defendant used only his hands to
overtake the elderly victim and remove him from his car.
5. Homicide--felony murder--underlying felony merges with felony murder conviction
The trial court erred in a first-degree felony murder case by failing to arrest judgment on
the underlying armed robbery conviction, because: (1) the underlying offense merged with the
felony murder conviction; and (2) the Court of Appeals' decision to reverse and remand the
conviction with instructions to the trial court to impose a verdict as to common law robbery
means the judgment is arrested on the common law robbery conviction.
Appeal by defendant from judgment dated 29 January 2003 by
Judge J. Richard Parker in Gates County Superior Court. Heard in
the Court of Appeals 26 May 2004.
Attorney General Roy Cooper, by Joan M. Cunningham, for the
Massengale & Ozer, by Marilyn G. Ozer, for the defendant.
Tony Earl Staten (defendant) appeals from a judgment
consistent with a jury verdict dated 29 January 2003 finding him
guilty of first-degree (felony) murder and armed robbery.
Defendant reported to Hertford County Superior Court on the
morning of 6 September 2000 to settle three traffic tickets. While
in the courtroom, defendant became upset with the courtroom staff.
The trial judge asked defendant to leave the courtroom and return
when he calmed down. Instead, defendant walked out of thecourtroom and away from the courthouse, heading north on U.S.
Highway 13 from Hertford County toward Gates County. At about
10:30 a.m., Trooper Jason Jones of the North Carolina State Highway
Patrol, was patrolling U.S. Highway 13 near Winton, North Carolina,
when he saw defendant. Thinking defendant may have had car
trouble, Trooper Jones asked defendant if he needed help.
Defendant, who was holding a Bible, responded by asking Trooper
Jones whether he knew the Lord? Trooper Jones responded, Yes
and again asked defendant if he needed any help. Defendant said,
No and Trooper Jones left. Defendant was not aggressive, nor did
he appear to be angry or frightened.
Later that morning at 11:45 a.m., Trooper Michael Warren saw
defendant walking down U.S. Highway 13. Defendant motioned for
Trooper Warren to pull over and he did so. Trooper Warren asked
defendant his name and where he was going. Defendant asked Trooper
Warren for a ride but did not indicate where he wanted to go.
Trooper Warren then pulled away, heading north on U.S. Highway 13
and observed defendant also continue walking north.
At about noon that same day, Penny Atkins Rose was driving
north on U.S. Highway 13. After crossing the bridge at Winton,
Rose saw Abraham Boone at the side of the road on his hands and
knees. He was missing one shoe and was not wearing a hat or
glasses. She stopped and called 911 for assistance. She attemptedto talk to him, but failed to understand Boone's responses as he
seemed to slip into unconsciousness. Rose returned to her car
and, concerned for Boone's survival, again
called for assistance.
Alice Sharpe, who was also driving by, realized there was an
emergency and stopped to help. By that time, Boone was completely
unconscious. Emergency personnel testified Boone had no pulse and
was not breathing by the time he arrived at the hospital. Medical
testimony revealed Boone died as a result of a heart attack and
that the scrapes and abrasions on Boone were consistent with a
Isaiah Harrell testified that on the afternoon of 6 September
2000 while at a stop sign his car was hit in the rear end
defendant. Defendant jumped out of the car he was driving, opened
Harrell's door, hit Harrell in the stomach and pulled him out of
his car. Defendant then got in Harrell's car and sped off, leaving
Harrell standing in the intersection.
Deputy Tim Lassiter, of the Hertford County Sheriff's
Department received a call reporting a car jacking at about noon on
6 September 2000. Meanwhile, officers from the Ahoskie Police
Department were chasing defendant who was driving recklessly at a
high rate of speed. Deputy Lassiter saw defendant turn his car and
crash directly into the vehicle of Deputy Mike Stephenson also of
the Hertford County Sheriff's Department. After struggling withseveral officers, defendant was arrested and taken into custody.
Later that afternoon, defendant spent approximately half an
hour giving a detailed
statement to law enforcement officials
Defendant said he recalled seeing Troopers Jones and Warren,
stating he thought at the time they were going to kill him. He
also recalled flagging down Boone, pulling him out of the car and
then driving off, leaving Boone beside the road laying down. He
remembered observing that the car he had stolen from Boone was
hot and wanting to get rid of it. Finally, he recounted taking
Defendant was served with warrants issued 6 September 2000
charging him with common law robbery and first-degree (felony)
murder of Boone. Defendant was later indicted for one count of
felony murder and one count of armed robbery as to Boone.
Defendant was not charged with any offenses as to Harrell. On 18
September 2000, Gates County District Court
Judge Carlton Cole
issued an order for a forensic screening examination of defendant
over defense counsel's objection
. Three days later, on 21
Ms. Chamberlee Trowell,
forensic screening examiner
and Licensed Psychologist Associate (L.P.A.), found defendant
incapable of proceeding to trial, noting defendant would not
cooperate during the assessment and was noncompliant withtreatment and . . . medications for his previously diagnosed
In a report dated 28 May 2001,
a forensic psychologist, indicated defendant was competent to stand
trial after having interviewed him on 24 January and again on 21
On 11 February 2002, defendant's motion for a
pre-trial hearing to determine mental retardation
came on for
hearing in Chowan County
(See footnote 1)
. Superior Court
Judge J. Richard Parker
ruled on defendant's motion and, on 18 February 2002,
case tried as noncapital, finding defendant to be mentally
Thereafter, defendant was evaluated by Dr. James G. Groce, a
forensic psychiatrist who, in a report dated 18 June 2002, found
defendant capable of proceeding to trial. Defendant was again
examined on 2 July 2002 by Dr. Hilkey, who concluded defendant
operated under a delusional belief system on the date of the
but deferred assessment of his competency to stand trial
until a date closer to trial. The day before trial on 4 August
2002, Dr. Hilkey evaluated defendant and reported despite
defendant's apparent competency to proceed [to trial], he remains
fixed in his delusional belief system. Defendant's first trial, held on 5 August 2002 in Gates County
Superior Court before Judge Jerry Tillett, ended in a mistrial when
the jury was unable to reach a unanimous verdict. The case was
retried on 21 January 2003, before Judge J. Richard Parker. On 28
January 2003, the jury found defendant guilty of first-degree
(felony) murder and armed robbery. The trial court sentenced
defendant to life in prison without parole on the first-degree
(felony) murder conviction, and to a concurrent sentence of 100 to
129 months on the armed robbery conviction
. Defendant appeals.
Defendant raises five issues on appeal: (I) whether the trial
court was required to sua sponte grant defendant a competency
hearing at trial; (II) whether the trial court erred by denying
defendant's motion for a directed verdict on the issue of insanity;
(III) whether the trial court erred by denying defendant's request
for jury instructions on diminished capacity; (IV) whether the
trial court erred by instructing the jury that defendant's use of
hands constituted armed robbery; and (V) whether the trial court
failed to arrest judgment on the underlying armed robbery
 Defendant asserts the trial court was required to sua
competency hearing; that the trial courtin fact had a constitutional duty to conduct a competency hearing
during his January 2003 trial. We disagree. In reviewing the
evidence before the trial court of defendant's competency and the
applicable law, we are persuaded the trial court was not required
to sua sponte
conduct a competency hearing, and therefore, did not
err in failing to do so.
N.C. Gen. Stat. § 15A-1001:
(a) No person may be tried, convicted,
sentenced, or punished for a crime when by
reason of mental illness or defect he is
unable to understand the nature and object of
the proceedings against him, to comprehend his
own situation in reference to the proceedings,
or to assist in his defense in a rational or
N.C.G.S. § 15A-1001 (2003).
The question of capacity may be raised at any time by motion
of the prosecutor, the defendant or defense counsel, or the court.
N.C. Gen. Stat. § 15A-1002(a) (2003).
Once a defendant's capacity
to stand trial is questioned, the trial court must hold a hearing
pursuant to N.C. Gen. Stat. § 15A-1002(b) (2003). A defendant has
the burden of proof to show incapacity or that he is not competent
to stand trial. State v. O'Neal
, 116 N.C. App. 390, 395, 448
S.E.2d 306, 310 (1994) (citing State v. Gates
, 65 N.C. App. 277,
283, 309 S.E.2d 498, 502 (1983)).
The test for capacity to stand trial is whether a defendant
has capacity to comprehend his position, to understand the nature
of the proceedings against him, to conduct his defense in a
rational manner and to cooperate with his counsel so that any
available defense may be interposed. State v. Jackson
, 302 N.C.
101, 104, 273 S.E.2d 666, 669 (1981) (citations omitted). It is
well established that the court gives significant weight to defense
counsel's representation that a client is competent, since counsel
is usually in the best position to determine if his client is able
to understand the proceedings and assist in his defense. State v.
, 163 N.C. App. 359, 369, 594 S.E.2d 71, 78, disc. review
, 358 N.C. 548, 599 S.E.2d 911 (2004) (hereinafter McRae
(See footnote 2)
So long as there is competent evidence to support the
findings of fact, a trial court's conclusion that a defendant is
competent to proceed to trial will not be disturbed, even if there
is evidence to the contrary. State v. Heptinstall
, 309 N.C. 231,
234, 306 S.E.2d 109, 111 (1983). A trial court has a constitutional duty to institute, sua
, a competency hearing if there is substantial evidence that
the accused may be mentally incompetent
. State v. Young
, 291 N.C.
562, 568, 231 S.E.2d 577, 581 (1977) (emphasis added) (internal
quotation marks omitted).
In other words, a trial judge is
required to hold a competency hearing when there is a bona fide
as to the defendant's competency even absent a request
Meeks v. Smith
512 F. Supp. 335, 338 (W.D.N.C. 1981).
Evidence of a defendant's irrational behavior, his demeanor
at trial, and any prior medical opinion on competence to stand
trial are all relevant to a bona fide
doubt inquiry. McRae I
N.C. App. at 390, 533 S.E.2d at 559 (quoting Drope v. Missouri
U.S. 162, 180, 43 L. Ed. 2d 103, 118 (1975)). There are, of
course, no fixed or immutable signs which invariably indicate the
need for further inquiry to determine fitness to proceed; the
question is often a difficult one in which a wide range of
manifestations and subtle nuances are implicated. State v.
, 168 N.C. App. 525, 529, 608 S.E.2d 381, 385 (N.C. Ct. App.
2005) (quoting Drope
, 420 U.S. 162, 180, 43 L. Ed. 2d 103, 118);
see also Heptinstall
at 233-34, 306 S.E.2d at 110-11 (where
forensic psychologist testified the defendant was alert, aware of
his surroundings, able to understand the seriousness of the charges
against him and capable of assisting his attorneys in preparing hisdefense
, this was sufficient evidence
to support a trial court's
determination the defendant was capable of proceeding to trial
despite the defendant's bizarre and nonsensical testimony and
testimony from numerous family members regarding
history of mental illness).
A review of the court proceedings in the instant case
indicates defendant was competent and fit to proceed to trial.
When defense counsel informed the trial court defendant would be
testifying, the trial court on voir dire
conducted a colloquy
concerning the voluntariness of defendant's testimony and
defendant's understanding of possible outcomes:
THE COURT: Have you got some witnesses here to
[Defense Counsel]: Yes, sir, Your Honor, and
before we proceed any further . . . I have
talk[ed] to Mr. Staten . . . again and he has
told me he definitely wants to take the
witness stand and testify in his own behalf.
I have gone over the pros and cons of that
with him, but would ask the Court to make
inquiry of him at this point in time with the
jury being out of the room so that it would be
on the record.
THE COURT: All right. Mr. Staten, you have
talked to your attorney concerning the
question of whether or not you should testify
or not [sic] in this case?
Mr. Staten: Yes sir.
THE COURT: And you understand that if you do
testify the State can ask you a lot of
questions on cross-examination about your
prior record and things of that nature?
Mr. Staten: Yes sir.
THE COURT: And you understand that may sway
the jury somewhat? Sometimes it does. And it
could be that it doesn't work out to your
Mr. Staten: Yes sir.
THE COURT: Are you telling me now that even
though you understand the consequences of your
decision to testify you still want to go
through with it?
Mr. Staten: I want to testify and tell
everybody like came [sic] behind me and
testified after I already testified and say
something about me and I want to testify again
to clear up what they have said like we did
the last time.
. . .
THE COURT: All right. You want to do it again
Mr. Staten: Yes, sir.
THE COURT: All right. I just want you to
understand what the consequences are of your
Mr. Staten: Thank you.
During the colloquy, d
efendant's replies were lucid and responsive,
demonstrating his desire to testify and displaying his
understanding of the consequences of doing so. In fact, suchinquiry and response between the trial court and defendant are in
the very nature of a competency hearing. See, e.g., State v.
, 65 N.C. App. 277, 282, 309 S.E.2d 498, 502 (1983) (Noting
although [N.C. Gen. Stat. § 15A-1002 (b)(3)] requires the court to
conduct a hearing when a question is raised as to a defendant's
capacity to stand trial no particular procedure is mandated. The
method of inquiry is still largely within the discretion of the
court.). However, we refrain from making a determination of
whether such a colloquy between the trial court and defendant was
sufficient to conform to the type of competency hearing anticipated
under N.C.G.S. § 15A-1002(b)(3), as the arguments in the briefs of
the State and defendant appear to assume no competency hearing was
held by the trial court.
Therefore, our inquiry centers on whether constitutional due
process required the trial court to sua sponte
conduct a competency
hearing in this case. In considering this inquiry we acknowledge
there are many cases which discuss capacity to proceed to trial,
and note the dual nature courts face: on the one hand our Supreme
Court has recognized that a defendant may waive the benefit of
statutory constitutional provisions by express consent, failure to
assert it in apt time, or by conduct inconsistent with a purpose to
insist upon it. Young
at 567, 231 S.E.2d at 580 (1997) (internal
quotation marks omitted). On the other hand our Supreme Court hasalso recognized that a trial court has a constitutional duty to
institute, sua sponte
, a competency hearing if there is substantial
evidence before the court
indicating that the accused may be
mentally incompetent. Snipes
at 529, 608 S.E.2d at 384 (emphasis
added) (internal quotation marks omitted)
In the instant case, evidence before the trial court
so substantial as to indicate defendant was mentally incompetent.
Throughout the trial proceedings, defendant acted in a manner
he recounted in
the events leading to Boone's death.
rational, responsive answers to questions during direct and cross
examination and was able to recall and describe events in detail.
In response to the trial court's request to simply answer
counsel's questions defendant apologize[d] for [his] lengthy
responses as [he was] only trying to explain.
a bit bizarre,
defendant's testimony for the most part was coherent
and displayed defendant's understanding of the proceedings.
Nevertheless, defendant argues his psychotic testimony and
mental health history raised a bona fide
doubt, as was found in
, such that he is entitled to a new trial. See McRae I
Based on the reasoning and result of McRae I
, defendant would be
entitled at most
to an RCH,
not a new trial.
In McRae I
defendant was deemed competent to stand trial after undergoing atleast six psychiatric evaluations and three competency hearings,
all finding him incompetent. A mistrial resulted when the jury was
unable to reach a verdict. McRae was retried
immediately, and even
though he underwent a psychiatric evaluation between the two
trials, the trial court did not conduct another competency hearing
prior to the second trial. McRae was convicted of murder. On
appeal, this Court in McRae I
remanded the case back to the trial
court to conduct an RCH, which RCH subsequently determined McRae
was indeed competent to stand trial. McRae then appealed the RCH
determination of competency and this Court, in McRae II
the judgment of the trial court, holding there was sufficient
evidence McRae was competent to stand trial based on the medical
evidence of competency and where his trial attorney never raised
the competency issue. McRae II
at 369, 594 S.E.2d at 78
Court said, [w]e hold this to be 'competent evidence' [that
defense counsel raised no question of competency and therefore
presented his client as competent]
supporting the trial judge's
determination that defendant was competent during the 11 May 1998
(the trial court's conclusions at an RCH are reviewed
under an abuse of discretion standard).
Our Court in McRae II
acknowledged the trial court's
discretion and recognized the important role of the trial court. The trial court is in the best position to
determine whether it can make such a
retrospective determination of defendant's
competency. Thus, if the trial court concludes
that a retrospective determination is still
possible, a competency hearing will be held,
and if the conclusion is that the defendant
was competent, no new trial will be required.
at 367, 594 S.E.2d at 77-78 (citing McRae I
at 392, 533
S.E.2d at 560-61 (2000)).
opinions illustrate why our
appellate courts must carefully evaluate the facts in each case in
determining whether to
reverse a trial judge for failure to conduct
a competency hearing where the discretion
of the trial
judge, as to the conduct of the hearing and as to the ultimate
ruling on the issue, is manifest.
(See footnote 3)
See McRae II
at 367, 594 S.E.2d
(noting the RCH remedy is disfavored due to the inherent
difficulty in making such nunc pro tunc
While we acknowledge McRae's
procedural history in our Court
and the constitutional underpinnings upon which it is based, we
decline to order an RCH in the instant case
based on McRae
doing we note that in McRae I
this Court determined a bona fide
doubt existed based on
seven prior and conflicting evaluations and
three prior competency hearings in which defendant was found by the
trial judge to be incompetent to proceed to trial. McRae I
the trial court's failure to conduct a competency hearing under
these circumstances violated defendant's constitutional due process
rights. McRae II
at 361, 594 S.E.2d at 74; see also Meeks
at 338 (court required to conduct hearing where defendant had
seven conflicting psychiatric examinations, at least three finding
him to be incompetent to proceed)
In the instant case, on at least four occasions
evaluated and conclusions entered regarding his competency to
proceed to trial. Defendant's first evaluation was actually an
assessment conducted more than two years prior to trial by a
forensic screener who
determined defendant to be incompetent to
stand trial, acknowledging that defendant would not cooperate with
the assessment and that he refused to take his medication. In the
other three evaluations, conducted by a psychologist and a
defendant was determined to be competent to stand
The other three psychological and psychiatric evaluations
finding defendant competent to stand trial were conducted over the
two years prior to defendant's trial, with the last one conductedon 4 August 2002, one day before defendant's first trial.
(See footnote 4)
Therefore, unlike Meeks
with the exception of the
defendant had no evaluations finding
him to be
incompetent to proceed to trial.
Moreover, neither defendant's behavior nor demeanor implicates
the necessity of a bona fide
doubt inquiry. While it is true
defendant suffered from mental retardation and intellectual
deficiencies throughout his life, and experienced periods of
intermittent mental illness which was based in a delusional belief
system, the evidence in the record pertaining to defendant's
competency at the time of his trial, including the trial
transcript, defendant's voluntary testimony and the extensive
medical records and expert testimonies,
all suggest there was never
a bona fide
doubt as to defendant's competency to stand trial.
Here, defendant took the stand willingly in his own defense andtestified clearly to the events leading up to Boone's death. He
exhibited proper courtroom decorum and a desire to cooperate in the
process. In his testimony, defendant tried to convince the court
and the jury that his hallucinations were real, denying all
criminal culpability throughout, and apologizing when his
explanations were too lengthy.
Reviewing the trial transcripts and other records of this
proceeding we cannot conclude the trial court had before it
sufficient objective facts showing defendant lack[ed] the capacity
to understand the nature and
object of the proceedings against
to consult with counsel, and to assist in preparing his defense at
the time his trial commenced. Snipes
at 530, 608 S.E.2d at 384
Instead, we hold that
defendant had the capacity to comprehend his
position, to understand the nature and object of the proceedings
against him, to conduct his defense in a rational manner, and to
assist his counsel. Heptinstall
at 236, 306 S.E.2d at 112.
stated in Young
, where, as here, the defendant has been . . .
examined relative to his capacity to proceed, and all evidence
before the court indicates that he has that capacity, he is not
denied due process by the failure of the trial judge to hold a
at 568, 231 S.E.2d at 581
his assignment of
error is overruled.
 Defendant next argues the trial court erred by denying his
motion for a directed verdict on the issue of insanity. We
disagree. If evidence of insanity is offered by the defendant,
even if un-controverted, the credibility of that testimony is for
the jury and thus precludes the entry of a directed verdict for
defendant on insanity. State v. Dorsey, 135 N.C. App. 116, 118,
519 S.E.2d 71, 72 (1999).
of insanity may absolve defendant of criminal
responsibility if he proves to the satisfaction of the jury that at
the time of the act, he was laboring under such a defect of reason
caused by disease or a deficiency of the mind that he was incapable
of knowing the nature and quality of his act, or, if he did know
the quality of his act, he was incapable of distinguishing between
right and wrong in relation to the act. State v. Bonney, 329 N.C.
61, 78, 405 S.E.2d 145, 155 (1991); State v. Mancuso, 321 N.C. 464,
469, 364 S.E.2d 359, 363 (1988); State v. Evangelista, 319 N.C.
152, 161, 353 S.E.2d 375, 382 (1987); State v. Mize, 315 N.C. 285,
289, 337 S.E.2d 562, 565 (1985). Every person is presumed sane and
the burden of proving insanity is properly placed on the defendant
in a criminal trial. State v. Leonard, 296 N.C. 58, 64, 248
S.E.2d 853, 856 (1978) (diagnosis of mental illness by expert is
not conclusive on issue of insanity). Defendant presented medical expert testimony through Dr. Groce
and Dr. Hilkey. Dr. Groce testified defendant knew the nature and
quality of his actions on the day of the offense but did not
understand that what he was doing was wrong. Also, and perhaps
more significantly, Dr. Groce stated if he were to offer any
opinion as to defendant's state of mind on the date of the offense
that opinion would only be his best guess and not a medical
Dr. Hilkey testified he had changed his mind during the course
of the (second) trial and thereafter gave his opinion that
defendant satisfied both prongs of the insanity test, stating
defendant was insane at the time of the offense. This testimony at
the second trial was different from his testimony at
trial where Dr. Hilkey testified defendant was incapable of
understanding the nature and quality of his actions and therefore
insane under only one prong of the insanity test.
On the issue of insanity, the jury was left to weigh the
credibility of the evidence as presented by the experts in the
second trial. See Dorsey at 118, 519 S.E.2d at 73. The trial
court properly denied defendant's motion for a directed verdict.
This assignment of error is overruled.
 Defendant next argues the trial court erred in denying his
request for a special instruction on diminished capacity,
contending the evidence of defendant's mental illness was
sufficient to support a diminished capacity instruction on intent
to commit armed robbery. We disagree.
An instruction on diminished capacity is warranted where
evidence of defendant's mental condition is sufficient to cause a
reasonable doubt in the rational trier of fact as to whether
defendant has the ability to form the necessary specific intent.
State v. Clark, 324 N.C. 146, 163, 377 S.E.2d 54, 64 (1989). The
defense of diminished capacity neither justifies nor excuses the
commission of an offense, but rather negates only the element of
specific intent, and the defendant could still be found guilty of
a lesser included offense. See, e.g., State v. Holder, 331 N.C.
462, 473-74, 418 S.E.2d 197, 203-04 (1992).
In State v. Lancaster, 137 N.C. App. 37, 44, 527 S.E.2d 61,
66-67, disc. review denied in part and allowed in part on other
grounds, 352 N.C. 680, 545 S.E.2d 723 (2000), this Court found that
despite the defendant's testimony about alcohol and drug use on the
night of the offense, there was insufficient evidence of his mental
condition at the time to support the diminished capacity
instruction. In the instant case, defendant testified at trial and provided
chronologically and factually accurate testimony as to his actions
leading up to his arrest on 6 September 2000. Further, after his
arrest defendant gave a detailed statement describing how he pulled
Boone out of his car and left him lying beside the road as he drove
away in Boone's car. Dr. Groce and Dr. Hilkey both gave expert
testimony that defendant's behaviors were influenced by his belief
that he was fleeing for his life on 6 September 2000. Dr. Groce
testified that when defendant took Boone's car, he knew he could
get away faster in a car than on foot, knew he was taking a car,
knew he was on a highway and knew he had just spoken with a police
officer. Defendant was aware of what he was doing, he rationalized
his actions as they occurred and he recounted the sequence of
events at trial. Defendant has failed to present substantial
evidence of diminished capacity; specifically, defendant failed to
show he did not have the specific intent to permanently deprive
Boone of his car. The trial court's denial of the diminished
capacity instruction was proper. This assignment of error is
 Defendant next argues the armed robbery judgment should be
overturned because hands cannot be deemed dangerous weapons. N.C. Gen. Stat. § 14-87, Robbery with firearms or other
dangerous weapons states:
(a) Any person or persons who, having in
possession or with the use or threatened use
of any firearms or other dangerous weapon,
implement or means, whereby the life of a
person is endangered or threatened, unlawfully
takes or attempts to take personal property
from another or from any place of business,
residence or banking institution or any other
place where there is a person or persons in
attendance, at any time, either day or
night. . . .
N.C.G.S. § 14-87 (2003).
If there is insufficient evidence of the greater offense but
sufficient evidence of the lesser included offense, the court
should treat the jury's verdict as a verdict of guilty of the
lesser included offense. See N.C. Gen. Stat. § 15-170 (2003)
(Upon the trial of any indictment the prisoner may be convicted of
the same crime, or of an attempt to commit the crime so charged, or
of an attempt to commit a lesser degree of the same crime.); s
also State v. Jolly, 297 N.C. 121, 130, 254 S.E.2d 1, 7 (1979).
Autopsy reports indicate Boone died of a heart attack. The
autopsy reports also indicate the scrapes, abrasions and bruises on
Boone's body show that, because his heart stopped, there was not
enough time for the blood to flow to these wounds before Boone's
death. Forensic pathologist
Dr. M.G.F. Gilliland testified Boonesustained minor cuts and abrasions prior to his death that were not
life threatening; that Boone's death was caused by a combination of
his weak heart and the stress caused by defendant stealing his car.
Here, defendant testified he used only his hands to overtake
Boone and remove him from his car
[Boone] was coming from the Gates County war.
I stuck my hand out. I am flagging him down
for him to stop. Not that I ever did assault
him, all I did - when I was in front of this
car, he tried - he tried to drive around me
and keep going because there was a whole lot
of cars in the street. [Boone] pulled over to
the right. That is when I went around to the
passenger side. He tried to take off and the
car wouldn't even move. And so then after I
said, I need your car. I need your car. He
still tried to take off. I undone his seat
belt and I took my hand and pulled him
(Defendant standing up.) . . . I pulled my
hand - I pulled him out to the side and jumped
in the car and took off . . . [i]f I would
have hit a man that old, I would really did
more than put a little scratch on his nose.
Taking the evidence in the light most favorable to the State,
the evidence is insufficient to support a conviction of armed
robbery. See State v. Easterling, 300 N.C. 594, 604, 268 S.E.2d
800, 806-07 (1980)
(evidence must be considered in the light most
favorable to the State and the State is entitled to every
reasonable inference therefrom).
However, the evidence is
sufficient to support a conviction of the lesser-included offense
of common law robbery. Common law robbery is a lesser-includedfelony offense of armed robbery. See State v. Norris, 264 N.C.
470, 473, 141 S.E.2d 869, 871-72 (1965).
Common law robbery
requires proof of four elements: (1) felonious, non-consensual
taking of (2) money or other personal property (3) from the person
or presence of another (4) by means of force. State v. Hedgecoe,
106 N.C. App. 157, 161, 415 S.E.2d 777, 780 (1992). Therefore,
although the evidence fails to support a conviction of armed
robbery, it nevertheless is sufficient to support a conviction of
the lesser included offense of common law robbery, which can
properly serve as the underlying felony for defendant's first-
degree felony murder conviction. State v. Vance, 328 N.C. 613,
623, 403 S.E.2d 495, 502 (1991). Therefore we reverse defendant's
armed robbery conviction and remand to the trial court with
instructions to enter a judgment against defendant as a verdict
finding him guilty of common law robbery.
 Defendant next argues the trial court erred when it failed
to arrest judgment on the underlying armed robbery conviction. We
agree the trial court erred in not arresting judgment and
sentencing defendant on the underlying armed robbery conviction.
It is undisputed that when a defendant is convicted of first-
degree murder pursuant to the felony murder rule, and a verdict of
guilty is returned on the underlying felony, this latter convictionprovides no basis for an additional sentence, hence it merges into
the murder conviction, and any judgment imposed on the underlying
felony must be arrested. State v. Silhan, 302 N.C. 223, 261-62,
275 S.E.2d 450, 477 (1981), overruled in part by State v.
Sanderson, 346 N.C. 669, 488 S.E.2d 133 (1997).
Here, the trial court properly sentenced defendant to life
imprisonment for the first-degree (felony) murder of Boone.
However, because the underlying offense merged with the felony
murder conviction, it was error to sentence defendant for the
underlying offense. Because we have reversed and remanded the
conviction of armed robbery
with instructions to the trial court to
impose a verdict as to common law robbery, we arrest judgment on
the common law robbery conviction.
In conclusion, we find there was no error at trial, we reverse
defendant's armed robbery conviction and remand with instructions
for entry of a verdict on common law robbery. Judgment is arrested
and the sentence vacated as to common law robbery.
No error in part
; Reversed and remanded in part; Vacated in
Judges TYSON and STEELMAN concur.
Attorneys for the State and defendant agreed to a change of
venue for the purpose of conducting the hearing on defendant's
We use McRae I
to distinguish the two appeals. In
(State v. McRae
, 139 N.C. App. 387, 533 S.E.2d 557
(2000)(hereinafter McRae I
)), this court ordered a Retrospective
Competency Hearing (RCH) following defendant's first-degree murder
conviction. In McRae II
, (State v. McRae
, 163 N.C. App. 359, 594
S.E.2d 71 (2004))
, the defendant appeals a second time following an
RCH. An RCH serves as a substitute for the hearing provided under
N.C.G.S. § 15A-1002.
Pursuant to N.C.G.S. § 15A-1002(a), the issue of capacity (or
competency) is within the trial court's discretion, and [the]
determination thereof, if supported by the evidence, is conclusive
on appeal. State v. Wolfe
, 157 N.C. App. 22, 30, 577 S.E.2d 655,
661, disc. review denied
, 357 N.C. 255, 583 S.E.2d 289 (2003);
State v. Reid
, 38 N.C. App. 547, 548-49, 248 S.E.2d 390, 391
(1978), disc. review denied
, 296 N.C. 588, 254 S.E.2d 31 (1979).
Dr. Hilkey on 28 May 2001 stated: It is my opinion that
while Mr. Staten has significant psychological disorders, these
problems do not currently interfere with his ability [to] consult
with his attorneys, to understanding the charges lodged against him
and comprehend the potential penalties.
Dr. Groce on 21 May 2002 found: Mr. Staten is currently
capable of proceeding to trial. He understands the charges against
him, the seriousness of those charges, and his own position
relative to the proceedings. He is currently capable of working
with an attorney in the preparation of a defense.
Dr. Hilkey on 4 August 2002 determined defendant competent to
proceed to trial despite the fact defendant remained fixed in his
delusional belief system.
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