RALEIGH, N.C. — An attorney for a man charged in the kidnapping and death of a Wendell woman on Wednesday asked a court to rule that his client is mentally retarded and ineligible for the death penalty.
Raleigh defense attorney Karl Knudsen says his motion for a discretionary pre-trial hearing has nothing to do with whether Antonio Davon Chance is innocent or guilty in the 2006 death of Cynthia Moreland. It has to do, he said, with whether the case should be tried as a capital prosecution.
State law prohibits executing mentally retarded people, those with an IQ below 70 and who had issues of adaptive functioning prior to age 18, if they are convicted of first-degree murder.
Chance, 30, is charged with first-degree murder in Moreland's death. Police said she was abducted from a parking garage beneath Progress Energy's headquarters in downtown Raleigh on Aug. 22, 2006.
Authorities found her body behind an abandoned barn in Harnett County 11 days later.
"A mentally retarded person can function at a certain level and can either do good things or can do bad things. It's just kind of a separation from that," Knudsen said. "And we have decided, both as a state and as a country, that it's unconstitutional and unlawful to execute somebody who's mentally retarded."
The 72-page court document contains an affidavit from clinical psychologist Dr. Ginger Calloway, who assessed Chance's mental capacity and background on two occasions.
Calloway writes that Chance "appears brighter, intellectually, than he is" and "was immature in his thinking, understanding and reasoning about various matters."
According to her affidavit, Chance scored a full-scale IQ of 67 in September 2006, after his arrest in the Moreland case, and a 66 on a test in November 2007.
He also "had extreme difficulty with functioning independently in academics and in social skills" and "functioned … with the help of others and not independently," having had several jobs. The longest he was able to hold one was six months.
In the motion, Knudsen says that determining whether Chance is mentally retarded before trial will "save considerable time, money and resources" and would "serve to narrow the issues in the case."
If the Wake County district attorney's office wants a hearing rather than agreeing Chance is retarded, the motion will go before a judge. That would be a first in Wake County.
Wake County Assistant District Attorney Howard Cummings said there's been no decision yet and that prosecutors are awaiting information from their own experts on the issue.
"If I had to make the decision today, I'd say 'no,'" Cummings said.
District Attorney Colon Willoughby says that in most cases, he would prefer a jury to consider evidence during a trial instead of having a judge making the decision beforehand.
"That's the way our system is set up and that's the way it should work," he said.
Chance's trial was slated to begin in February. Attorneys announced their intention to file the motion in January, delaying the trial. A new date has not been set.
"It's, certainly, the latest technique in trying to avoid the death penalty of people who have lived independent lives for years and years," Willoughby said. "And now, all of a sudden, they say, 'I'm retarded,' when you're getting ready to try them for murder."
Moreland's widower, Walter Moreland, said Wednesday, he and his daughter are upset by the trial's delay and that they want it to be over.
He said he believes too much planning was involved in the crime for Chance to be mentally retarded, despite any supporting evidence from psychologists.
"I don't think he's mentally retarded," Moreland said, "even if they prove it."