evidence at the suppression hearing of defendant’s limited intellectual functioning. Although defense coun sel did not raise any issue concerning defendant’s intellectual functioning at the hearing, no evidence indicated that defendant was confused or incapable of understanding either the detectives or his rights. In contrast, the evidence indicates he was coherent, gave cogent answers that were responsive to the questions asked, and made his statements knowingly, freely, and voluntarily. Moreover, the record plainly reveals that defense counsel was aware of evidence of defendant’s mental condition, suggesting that failure to pursue the issue during the pretrial suppression hearing may have been a strategic decision. See State v. Frogge, 359 N.C. 228, 245, 607 S.E.2d 627, 637 (2005) (<HOLDING>). Nevertheless, because the record is silent as
holding that issues not argued specifically and distinctly in a partys opening brief are waived internal quotation marks and citations omitted recognizing that the declaratory judgment act is only procedural and does not create substantive rights internal quotation marks and citations omitted recognizing probable cause as complete defense to a claim of malicious prosecution in new york internal quotation marks and brackets omitted holding that supervisory liability under  1983 must be based on active unconstitutional behavior and cannot be based upon a mere failure to act internal quotation marks omitted holding that defense counsels decision to abandon a defense based upon brain dysfunction and pursue a different approach was a reasonable professional judgment citations and internal quotation marks omitted