Judge James Spencer said a jury will have to decide whether Antonio D. Chance can face the death penalty in the kidnapping and killing of a Progress Energy employee two years ago.

Cynthia Moreland, 48, was kidnapped from a downtown Raleigh parking deck in August 2006 near her job at Progress Energy.

Chance, 30, a convicted sex offender, is charged in her murder.

The U.S. Supreme Court ruled in 2002 that states could not execute the mentally retarded. North Carolina has a similar law that outlines factors constituting mental retardation: Defendants must exhibit signs of retardation before the age of 18; show IQ scores less than 70; or display other difficulties in adapting to everyday life.

Chance had taken IQ tests and had scores ranging from 66 to 75 on at least five occasions, the first, when he was 5, and the most recent, while he was in jail awaiting his trial on the murder charge, according to a report by Ginger Calloway, a Raleigh psychologist.

But Spencer denied a pre-trial hearing on Chase's mental retardation. The trial is scheduled for September.