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North Carolina v. McKoy9/7/1988
tance 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." State v. Kirkley, 308 N.C. 196, 218, 302 S.E.2d 144, 157 (1983). A requirement that the defendant must carry a certain evidentiary burden to prove the existence of a mitigating factor is a proper limitation of the jury's discretion. See Patterson v. New York, 432 U.S. 197, 201, 209, 53 L. Ed. 2d 281, 286-87, 291 (1977) (states normally have the power to regulate burdens of production and persuasion and " f the State . . . chooses to recognize a factor that mitigates the degree of criminality or punishment, . . . the State may assure itself that the fact has been established with reasonable certainty"). The instructions and verdict form in our capital-sentencing procedure serve to channel the jury's discretion by ensuring that, when
the jury makes its final sentencing determination, it will only consider evidence which we have, in effect, determined to be relevant. If all the jurors do not agree on the existence of a specific mitigating circumstance, then the defendant has failed to meet his or her burden of proof on that circumstance and the evidence regarding it is not legally relevant for sentencing purposes. Therefore, the instruction to the jury to weigh only the mitigating circumstances "found" by a unanimous vote was an instruction to consider only the relevant mitigating evidence in answering Issues Three and Four.
In Mills, the Maryland Court of Appeals had held that jurors could only mark "no" on a mitigating circumstance when they unanimously found that mitigating circumstance not to exist. Mills v. State, 310 Md. 33, 55, 527 A. 2d 3, 13 (1987). Where some, but not all, jurors agreed on the existence of a mitigating circumstance, the jury could not mark "no" to that circumstance; thus, unlike in North Carolina, the mitigating evidence introduced to support that mitigating circumstance remained legally relevant even though the jurors did not agree unanimously on the existence of the mitigating circumstance.
The fact that such evidence remained legally relevant apparently was significant in the Supreme Court's resolution of Mills. The Court noted that " o one has argued here, nor did the Maryland Court of Appeals suggest, that mitigating evidence can be rendered legally 'irrelevant' by one holdout vote." Mills v. Maryland, U.S. at n.7, 100 L. Ed. 2d at 394 n.7. The Court went on to state that the problem in Mills was that in answering Section III of the verdict form, the jurors "were not free . . . to consider all relevant evidence in mitigation as they balanced aggravating and mitigating circumstances." Id. at , 100 L. Ed. 2d at 397 (emphasis added). The instructions in Mills were potentially misleading and thus inadequate because they did not clearly permit the jury to consider all relevant evidence. Under North Carolina law, the jury is not prevented from considering relevant mitigating evidence at any time during sentencing.
Like the United States Supreme Court, see Godfrey v. Georgia, 446 U.S. at 428, 64 L. Ed. 2d at 406, we have emphasized the need for guided discretion in the capital-sentencing process. In State v. Brown, 320 N.C. 179, 358 S.E.2d 1, cert. denied, U.S. ,
98 L. Ed. 2d 406 (1987), the defendant argued that the trial court erroneously instructed the jury that it could only consider the "found" mitigating circumstances in weighing the mitigating and aggravating circumstances. He contended that the jury should have been able to consider circumstan
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