STATE of North Carolina
v.
Curtis Eugene SMITH.
No. 63A87.
Supreme Court of North Carolina.
December 2, 1987.Lacy H. Thornburg, Atty. Gen. by Isaac T. Avery, III, Sp. Deputy Atty. Gen. and H. Julian Philpott, Jr., Associate Atty. Gen., for State.
Malcolm Ray Hunter, Jr., Appellate Defender by Mark D. Montgomery, Asst. Appellate Defender, for defendant-appellant.
WEBB, Justice.
The defendant assigns error to the court's failure to find two mitigating circumstances, the first being that "prior to arrest or at an early stage of the criminal *160 process, the defendant voluntarily acknowledged wrongdoing in connection with the offense to a law enforcement officer." N.C.G.S. § 15A-1340.4(a)(2)l
The assignment of error brings to the Court the question of whether a defendant may use as evidence of the above mitigating circumstance the fact that he confessed at an early stage of the proceedings after he moves to suppress the confession. In State v. Hayes, 314 N.C. 460, 334 S.E.2d 741 (1985), this Court held that a defendant could not use a confession to prove the mitigating circumstance after he had repudiated the confession. In State v. Robbins, 319 N.C. 465, 526, 356 S.E.2d 279, 315 (1987), we said, "[D]efendant made a motion to suppress these statements. This Court has held that if a defendant repudiates his incriminatory statement, he is not entitled to a finding of this mitigating circumstance." We hold that when a defendant moves to suppress a confession, he repudiates it and is not entitled to use evidence of the confession to prove this mitigating circumstance. We believe this holding is consistent with the holdings of previous cases and is a better reasoned rule than that for which the defendant contends.
The defendant also contends it was error not to find as a mitigating circumstance that, "The defendant's immaturity or his limited mental capacity at the time of commission of the offense significantly reduced his culpability for the offense." N.C.G.S. § 15A-1340.4(a)(2)e. There was uncontradicted evidence that the defendant was 16½ years old at the time of the offense and that he had an I.Q. ranging from 60 to 65 which placed him in the bottom one percent of the population in intelligence. A psychiatrist testified he is "more like a ten year old" than a sixteen year old.
It is true that the evidence is uncontradicted that the defendant is of limited mental capacity. The evidence is not uncontradicted, however, that this limited mental capacity significantly reduced his culpability for the offense. There was evidence that the defendant and Ross had discussed robbing the Paschall Oil Company two weeks before the offense at the suggestion of the defendant. They had planned to tell Mr. Hunt that a woman needed oil and wanted his address. They planned to hit him while he was writing his address for the fictitious woman. There was evidence that they carried out this plan. While Mr. Hunt was writing the address defendant hit him in the head with a stick. When Mr. Hunt grabbed Ross, defendant hit him again so hard that brains, blood, and bone flew from his head.
We do not believe we should hold that because the evidence shows a defendant is of limited mental capacity, a court has to find this mitigating circumstance. The evidence must also show this limited mental capacity significantly reduced the defendant's culpability. The evidence was in conflict on this part of the mitigating circumstance and it was not error for the court not to find it. See State v. Moore, 317 N.C. 275, 345 S.E.2d 217 (1986).
AFFIRMED.