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North Carolina v. McKoy9/7/1988
eration the jury returned to the courtroom to ask specifically whether it must agree unanimously on each mitigating circumstance before it could continue to consider that circumstance in determining whether to impose death or life imprisonment. The trial court instructed the jury that it must unanimously agree on
each mitigating circumstance before it could continue to consider it in the ultimate balancing process. A majority of this Court in Kirkley held, contrary to the position of both the defendant and the state, that there was no error in the trial court's supplemental instructions on the unanimity question, saying, "Certainly consistency and fairness dictate that a jury unanimously find that a mitigating circumstance exists before it may be considered for the purpose of sentencing." Kirkley, 308 N.C. at 218, 302 S.E.2d at 157.
Dissenting on this issue in Kirkley, I adopted essentially what was then the state's position. The state in its brief in Kirkley said:
Lockett v. Ohio, 438 U.S. 586 [57 L. Ed. 2d 973] (1978), holds that a statute that prevents the sentencer in all capital cases from giving independent weight to aspects in mitigation creates a risk that a death penalty will be imposed in spite of factors which call for a less severe penalty and thus is unconstitutional. It would seem manifestly improper, then, not to permit members of a jury to consider a factor in mitigation simply because all members of the jury were not satisfied with the defendant's showing concerning a particular mitigating circumstance. It would also make any sentencing procedure unmanageable if each time a jury deadlocked on an issue a new sentencing hearing was required.
It is the State's position that only those mitigating circumstances found unanimously to exist should be listed on the verdict sheet recommended in State v. Rook, 304 N.C. 201, 283 S.E.2d 732 (1981), cert. denied, 455 U.S. 1038 [72 L. Ed. 2d 155] (1982). However, no juror should be precluded from considering anything in mitigation in the ultimate balancing process even if that mitigating factor was not agreed upon unanimously. To do otherwise, the State believes, could run afoul of Lockett v. Ohio, supra.
Kirkley, 308 N.C. at 229, 302 S.E.2d at 163 (emphasis supplied). I wrote in my Kirkley dissent:
While the state's position on this question might pass constitutional muster, I think the better practice would be to instruct: (1) unanimity is not required in order to answer the
question of the existence of a mitigating circumstance favorably to defendant; (2) such an issue should be answered unfavorably to defendant only if all jurors agreed to so answer it; (3) such an issue should be answered favorably to defendant if any juror would so answer it with an indication on the verdict form as to how many jurors so voted; and (4) in the final balancing process each juror would be free to consider only those mitigating circumstances which he or she were persuaded existed in the case.
Kirkley, 308 N.C. at 229-30, 302 S.E.2d at 163. I still adhere to this position.
Despite the majority's valiant effort to explain Mills away, the Mills holding cannot be reconciled with our Kirkley holding on the unanimity question. Instead the Mills holding squarely sustains the position both the state and I took in Kirkley on this issue. Whatever escape from the Mills holding might be provided by differences in Maryland's and North Carolina's capital sentenci
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