Criminal Practice – Jury Instruction – Diminished Capacity – Insufficient Evidence

State v. McDowell (Lawyers Weekly No. 11-07-0934, 34 pp.) (Sam Ervin IV, J.) Appealed from Ashe County Superior Court. (Edgar B. Gregory, J.) N.C. App. Click here for the full-text opinion.

Holding: Even though defendant’s experts testified about his mental conditions, they never testified that these conditions left him unable to premeditate, deliberate or form the specific intent to kill; therefore, defendant was not entitled to a jury instruction on diminished capacity.

We find no error in defendant’s conviction of first-degree murder.

Even though officers did not collect a hair and tissue they observed on the wall at the scene of the shooting, they were properly allowed to testify about their observation. Nothing about such an observation suggests the need for any particular expertise. Moreover, defendant cites no authority for the proposition that the state is required to collect evidence as a pre-condition to offering testimony about it, and we have found no such authority.