concurring:
I concur in the majority opinion in the decision that Conaway’s execution is not precluded by the Eighth Amendment under Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). I also concur in the remand of the case for further consideration of the juror bias claim, but for a different reason than does the majority.
Conaway’s attorneys knew of the telephone call with respect to the relationship between the juror Waddell and the witness and co-defendant Harrington at 1:45 p.m. October 10, 1992. October 10 was two days prior to the commencement of the trial, which started on October 12, 1992 with the empaneling of the jury, it having not been previously sworn, although selected, in proceedings in the trial court from Monday, October 5 through Friday, October 9,1992. The telephone call referred to was described as anonymous and as follows:
*593The gist of the call was that juror No. 1, I believe, is a cousin, and may be even a first cousin of the co-defendant Kelly Harrington. J.A. llOlf.
The jury had not been empaneled until the trial began, the morning of October 12, and North Carolina law was quite clear that the juror Waddell was disqualified as a cousin of a prosecuting witness as a matter of law under State v. Allred, 275 N.C. 554, 169 S.E.2d 833 (1969). But no challenge was made to the seating of Wad-dell at that time, or later, before verdict, and Conaway’s attorneys moved only that the trial court “examine, juror No. 1, [Waddell] to ascertain his kinship, if any.” The motion was denied. J.A. llOlg.
The trial on the merits commenced on October 12th, and continued on October 13, 14 and 15, when the case was sent to the jury. The jury returned its verdict the afternoon of the 15th. Conaway testified for himself on October 14th and 15th, and Harrington had testified on October 12th and 13th on behalf of the State. Both were cross-examined, as were all of the witnesses whose testimony was other than purely routine and subject to little contradiction or interpretation. Through all four days of the trial on the merits, Conaway and his attorneys sat silent as to Waddell’s disqualification, with the disqualified juror, Waddell, sitting on the jury. This was no helter-skelter defense but was active and strenuous. I am convinced that, on this record, Conaway and his attorneys suffered Waddell to be on the jury and cannot now take advantage of any error relating to his sitting.