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North Carolina v. McKoy9/7/1988
ng scheme or by the posture in which the Mills case reached the Supreme Court is effectively closed, it seems to me, by the rationale of the Mills decision as expressed in the opinion itself.
The majority correctly identifies the Mills holding: Jury instructions in a capital sentencing proceeding which create "a substantial probability that reasonable jurors . . . may well have thought that they were precluded from considering any mitigating evidence unless all 12 jurors agreed on the existence of a particular such circumstance" are constitutionally infirm under the Supreme Court's Eighth Amendment jurisprudence. Mills, 486 U.S. at , 100 L. Ed. 2d at 400. Our Kirkley holding is precisely to the contrary and should, therefore, yield.
The majority chooses instead to distinguish Mills on the basis of two circumstances urged upon this Court by the state as legally material differences.
The first difference suggested is that in Maryland a capital sentencing jury which finds at least one aggravating circumstance and fails to find any mitigating circumstances never engages in a balancing process and must return a sentence of death. In North Carolina even if one or more aggravating circumstances and no mitigating circumstances are found, the jury may nevertheless
elect not to impose the death penalty on the basis that the aggravating circumstances are themselves not sufficiently substantial to call for its imposition.
Relying on this difference in the two states' sentencing schemes as justification for continuing our Kirkley unanimity requirement ignores the rationale underlying the Mills holding as it is explained in the Mills opinion. It is true that the Supreme Court in Mills was concerned that a single holdout juror in Maryland on mitigating circumstances might force the imposition of the death penalty. The last substantive sentence of the Mills opinion is, " he possibility that a single juror could block [consideration of mitigating evidence], and consequently require the jury to impose the death penalty, is one we dare not risk." Mills, 486 U.S. at , 100 L. Ed. 2d at 400. Indeed, in Mills the jury found the one aggravating circumstance submitted, found none of the several mitigating circumstances submitted and on that basis returned a sentence of death.
In Maryland, however, a jury finding one or more aggravating circumstances to exist and one or more mitigating circumstances to exist would then balance the conflicting sets of circumstances by determining whether the mitigating circumstances outweigh the aggravating. In this situation the Maryland sentencing scheme is indistinguishable in principle from North Carolina's.
In North Carolina when both mitigating and aggravating circumstances are found the jury must determine whether the mitigating circumstances are insufficient to outweigh the aggravating. If they are insufficient, then the aggravating circumstances must be considered with the mitigating circumstances and found to be sufficiently substantial to warrant imposition of the death penalty. In both balancing processes only those mitigating circumstances found to exist by all twelve jurors can be considered. Eleven jurors are prevented from considering mitigating circumstances they might wish to consider in these final balancing processes if the one remaining juror refuses to do so. This amounts to contradicting Mills by unconstitutionally precluding jurors in North Carolina from considering mitigating circumstances when they ultimately determine whether to impose the death penalty.
The Mills rationale as expressed in the opinion leads inescapably to the conclusion that its holding would apply to a Mar
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