¶1concurs in part and dissents in part.
¶2I concur in holding that the trial court erred in finding as a factor in aggravation that the offense was especially cruel. However, I believe the case should be remanded for resentencing only because I find no error in either the trial court’s order substituting family-retained counsel for appointed counsel or its refusal to allow the defendant to introduce evidence of his insanity.
¶3On the facts of this case, the trial court’s decision to enter an order substituting family-retained counsel for appointed counsel, who could not be present when the trial began, did not deny defendant the effective assistance of counsel. There is no allegation that Mr. Farris’ representation of defendant was in any way insufficient or that he did not have adequate time to prepare for trial. Defendant’s only apparent objection to Mr. Farris was that he did not like him because, in defendant’s words at trial, “he ain’t communicated with me in a form of my ability and my class. ... I am in another religion. ... I can’t understand him.” Defendant further stated that he wanted “the best. I get eleven hundred dollars a month. I got six or seven thousand dollars in the bank. I can hire me a lawyer from Raleigh.” Given the circumstances present here, I believe the trial court properly exer*376cised its discretion in accordance with the rules established by State v. Williams, 34 N.C. App. 408, 238 S.E. 2d 668, appeal dismissed, 293 N.C. 743, 251 S.E. 2d 515 (1977), cert. denied, 436 U.S. 906, 56 L.Ed. 2d 404, 98 S.Ct. 2237 (1978), and did not err in substituting family-retained counsel for court-appointed counsel who could not be present for trial.
¶4I also believe the trial court did not err in sustaining the State’s objections to questions regarding the defendant’s mental condition at the time of the offense. It is uncontroverted that the defendant failed to comply with G.S. 15A-959. I disagree with the statement that State v. Mathis, 293 N.C. 660, 239 S.E. 2d 245 (1977); and State v. Johnson, 35 N.C. App. 729, 242 S.E. 2d 517, disc. rev. denied, appeal dismissed, 295 N.C. 263, 245 S.E. 2d 779 (1978), have conclusively settled the issue that the defendant can still offer evidence of insanity when he fails to give timely notice. In Mathis, Justice Lake wrote: “Thus, under the plea as entered, evidence of the defendant’s insanity, if otherwise competent, would have been admissible. We do not reach the point upon the present appeal as to whether, by virtue of lack of notice to the state of intent to rely upon insanity as a defense, the defendant could be properly precluded from offering evidence of insanity.” (Emphasis added.) 293 N.C. at 673, 239 S.E. 2d at 253. In Johnson, this Court’s opinion erroneously assumes that Mathisstands for the proposition that evidence of insanity must always be admitted. In State v. Byrd, 39 N.C. App. 659, 251 S.E. 2d 712 (1979), this Court implied that the issue was still undecided: “We do not reach or express an opinion on . . . whether defendant waived any right he might once have had to rely on the defense of insanity by failing to avail himself of the procedures provided by G.S. 15A-959.” Id. at 661, 251 S.E. 2d at 714. I believe a defendant can waive his right to rely on the defense of insanity by failing to follow G.S. 15A-959. I believe the defendant in this case waived that right and that the trial court committed no error by sustaining the State’s objections to defendant’s questions about his mental condition.