North Carolina v. McKoy9/7/1988
who has the burden of proof and the different quantum of proof required to establish the existence of a circumstance, we see no reason to distinguish the method a jury must use in finding the existence or nonexistence of aggravating and mitigating circumstances during
the sentencing procedure. It must be kept in mind that when the sentencing procedure begins there are no aggravating or mitigating circumstances deemed to be in existence. Each circumstance must be established by the party who bears the burden of proof and if he fails to meet his burden of proof on any circumstance, that circumstance may not be considered in that case.
In determining whether a mitigating circumstance exists, the jury is free to consider all the evidence relevant to that circumstance. This procedure is in accord with the requirements of Lockett v. Ohio, 438 U.S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978) and Eddings v. Oklahoma, U.S. , 102 S. Ct. 869, 71 L. Ed. 2d 1 (1982). We therefore find no error in the trial judge's instructions to the jury concerning the unanimity requirement on mitigating circumstances.
Id. at 219, 302 S.E.2d at 157.
We have declined to reexamine our Kirkley holding in several cases, including the following: State v. Lloyd, 321 N.C. 301, 364 S.E.2d 316 (1988); State v. Holden, 321 N.C. 125, 362 S.E.2d 513 (1987), cert. denied, U.S. , 100 L. Ed. 2d 935 (1988); State v. Brown, 320 N.C. 179, 358 S.E.2d 1, cert. denied, U.S. , 98 L. Ed. 2d 406 (1987); State v. Noland, 312 N.C. 1, 320 S.E.2d 642 (1984), cert. denied, 469 U.S. 1230, 84 L. Ed. 2d 369 (1985); State v. Maynard, 311 N.C. 1, 316 S.E.2d 197, cert. denied, 469 U.S. 963, 83 L. Ed. 2d 299 (1984); State v. Oliver, 309 N.C. 326, 307 S.E.2d 304 (1983).
As a matter of state law, then, this issue is clearly settled contrary to defendant's position. Defendant contends, however, that the recent decision of the United States Supreme Court in Mills v. Maryland, 486 U.S. , 100 L. Ed. 2d 384 (1988), requires that we overrule Kirkley and its progeny. In Mills, the Supreme Court held that the trial court's instructions to the jury were constitutionally infirm because "reasonable jurors . . . may have thought they were precluded from considering any mitigating evidence unless all 12 jurors agreed on the existence of a particular such circumstance." Id. at , 100 L. Ed. 2d at 400.
Mills is one of a long line of cases in which the United States Supreme Court has examined the constitutionality of state
capital-sentencing schemes. The Court has faced the tensions between two concerns relating to such schemes: the constitutional requirement of individualized sentencing, and the constitutional requirement that the death penalty not be inflicted arbitrarily and capriciously. In Lockett v. Ohio, 438 U.S. 586, 57 L. Ed. 2d 973 (1978), the court recognized that " he signals from this Court have not . . . always been easy to decipher" and that it had "an obligation to reconcile previously differing views in order to provide [clear] guidance." Lockett, 438 U.S. at 602, 57 L. Ed. 2d at 988 (plurality opinion).
The plurality opinion in Lockett explained how, in Furman v. Georgia, 408 U.S. 238, 33 L. Ed. 2d 346 (1972), a plurality of the Court had concluded that "discretionary sentencing, unguided by legisla
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