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North Carolina v. McKoy9/7/1988
y for permitting the sentencer in a capital case to "consider" all mitigating evidence in determining whether to impose or not to impose the death penalty, it clearly has reference to that stage of the process where the final sentencing decision is being made. It is at that stage where under Mills and its predecessors any juror must not be precluded from considering evidence that juror might reasonably believe to have mitigating value. It is not enough that the juror be permitted to "consider" the mitigating evidence at the point when the jury is trying to determine whether any particular mitigating circumstances exist. There is no question that all jurors were permitted to consider such evidence at that stage of the process in Mills.
Rather, the question presented in Mills is whether at the ultimate decision-making stage of a capital sentencing proceeding it is constitutionally permissible to preclude any juror from considering a mitigating circumstance that juror believes to exist because not all jurors agree on its existence. Mills answers that question "no." It also makes clear that the question must be answered "no" notwithstanding any procedural devices a state may employ to preclude the sentencer's consideration of mitigating factors at the ultimate decision-making stage. This means to me that North Carolina cannot preclude jurors from considering mitigating evidence at that stage by labeling the evidence legally irrelevant.
The majority relies in part on Franklin v. Lynaugh, U.S. , 101 L. Ed. 2d 155 (1988), for the proposition that it is permissible for states to structure, direct and focus the jury's consideration of mitigating evidence. Guiding and structuring the jury's consideration of mitigating evidence is one thing; precluding the jury's consideration of such evidence at the final decision-making
stage is quite another. Lynaugh permits the former; Mills prohibits the latter. Indeed, the Supreme Court concluded the instructions in Lynaugh were not constitutionally infirm " ecause we do not believe that the jury instructions or the Texas Special Issues precluded jury consideration of any relevant mitigating circumstances in this case, or otherwise unconstitutionally limited the jury's discretion . . . ." Lynaugh, U.S. at 101 L. Ed. 2d at 171.
Because the majority's reliance on the Supreme Court's denial of certiorari in two North Carolina cases in which the Mills issue was raised is sparing and properly carries with it the recognition that such denials mean nothing with regard to the Court's views on the merits of the case, I see little need to respond to this aspect of the majority's opinion. Suffice it to say that, according to the authorities cited by the majority, the Supreme Court's position on the issue of the unanimity requirement vis-a-vis mitigating circumstances in a capital sentencing procedure should be determined entirely from its holding and its analysis in Mills and not at all from its denials of applications for writs of certiorari in cases in which this issue might have been raised.
Justice Frye dissenting.
Believing that the defendant has not received a fair and impartial trial, I dissent from the majority's decision in both the guilt-innocence and sentencing phases of the trial. First, I am convinced that under the totality of the circumstances, defendant's oral confession was not knowingly and voluntarily made and, for that reason, its admission in evidence against him was error. These circumstances are set out in some detail in the dissenting opinion of Justice Martin in which he concludes that the defendant is entitled to a new trial. I concur in that portion of his opinion.
I also conclude
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