State v. Pinch

*38 Justice Exum

dissenting as to sentence.

I.

I find myself, first, in strong disagreement with the majority on an extremely important new question dealing with the construction of our death penalty statute. The majority holds, after somewhat cursory treatment and a bare-bones analysis, that under the statute, G.S. 15A-2000, if the jury finds: (1) the existence of one or more statutory aggravating circumstances, (2) that the aggravating circumstance(s) so found are sufficiently substantial to call for the death penalty and (3) the aggravating circumstance(s) outweigh the mitigating circumstances, then the jury must return the death penalty. Nowhere, of course, does the statute so provide. The majority construes the statute in this way on the sole ground that otherwise the statute would be subject to the constitutional attack that a jury could decide between life and death in its unbridled discretion. Yet decisions of the United States Supreme Court, none of which are mentioned in the majority’s discussion, have made it abundantly clear that the majority’s interpretation is not constitutionally required.

In one of its first cases construing our death penalty statute, this Court noted, “[t]he first maxim of statutory construction is to ascertain the intent of the legislature. To do this, this Court should consider the statute as a whole, the spirit of the statute, the evils it was designed to remedy, and what the statute seeks to accomplish.” State v. Johnson, 298 N.C. 47, 56 , 257 S.E. 2d 597, 606 (1979). In Johnson , this Court recognized that our death penalty statute was enacted following a quintet of cases all decided by the United States Supreme Court on 2 July 1976. These cáses struck down mandatory death penalty statutes in North Carolina, Woodson v. North Carolina, 428 U.S. 280 (1976) (plurality opinion), and Louisiana, Roberts v. Louisiana, 428 U.S. 325 (1976) (plurality opinion), but sustained death penalty statues which, in varying degrees, sought to control the discretion exercised in capital sentencing in Georgia, Gregg v. Georgia, 428 U.S. 153 (1976) (plurality opinion); Florida, Proffitt v. Florida, 428 U.S. 242 (1976) (plurality opinion); and Texas, Jurek v. Texas, 428 U.S. 262 (1976) (plurality opinion). This Court noted in Johnson that these five cases “made clear that neither unbridled, unguided discretion nor the absence of all discretion in the imposition of the death penalty is constitutionally permissible.” 298 N.C. at 58 , 257 S.E. 2d at 607 *39 (emphasis supplied). After further discussion of United States Supreme Court decisions and various provisions of the Model Penal Code, upon which our statute was largely based, this Court concluded in Johnson, 298 N.C. at 63 , 257 S.E.2d at 610 :

In summary, there are a number of controlling factors governing the interpretation of our death penalty statute. Unbridled discretion in the imposition of the sentence is not permitted. On the other hand, sentencing juries must have some discretion to determine in a rational and consistent manner those cases in which the death penalty should be imposed. Juries are to be guided in this process by a carefully defined set of statutory criteria that allow them to take into account the nature of the crime and the character of the accused. Thorough jury instructions, which incorporate and reflect the definitions accorded to these criteria and which are fully applied to the facts of each case, must be given. In each case the process must be directed toward the jury’s having a full understanding of both the relevant aggravating and mitigating factors and the necessity of balancing them against each other in determining whether to impose the death penalty. Lastly, any imposition of the death penalty by the jury should be searchingly reviewed by the appellate courts to insure the absence of unfairness, arbitrariness or caprice in the result.

Regarding the question before us, the statute, G.S. 15A-2000, provides in pertinent part as follows:

(b) Sentence Recommendation by the Jury.— ... In all cases in which the death penalty may be authorized, the judge shall include in his instructions to the jury that it must consider any aggravating circumstance or circumstances or mitigating circumstance or circumstances from the lists provided in subsections (e) and (f) which may be supported by the evidence, and shall furnish to the jury a written list of issues relating to such aggravating or mitigating circumstance or circumstances.

After hearing the evidence, argument of counsel, and instructions of the court, the jury shall deliberate and render a sentence recommendation to the court, based upon the following matters:

*40 (1) Whether any sufficient aggravating circumstance or circumstances as enumerated in subsection (e) exist;

(2) Whether any sufficient mitigating circumstance or circumstances as enumerated in subsection (f), which outweigh the aggravating circumstance or circumstances found, exist; and

(3) Based on these considerations, whether the defendant should he sentenced to death or to imprisonment in the State’s prison for life.

(c) Findings in Support of Sentence of Death.— When the jury recommends sentence of death, the foreman of the jury shall sign a writing on behalf of the jury which writing shall show:

(1) The statutory aggravating circumstance or circumstances which the jury finds beyond a reasonable doubt; and

(2) That the statutory aggravating circumstance or circumstances found by the jury are sufficiently substantial to call for the imposition of the death penalty; and,

(3) That the mitigating circumstance or circumstances are insufficient to outweigh the aggravating circumstance or circumstances found.

[Emphases supplied.]

In essence, then, the statute provides that in determining whether to impose death or life imprisonment the jury “must consider” certain aggravating and mitigating circumstances; that the jury’s sentence recommendation shall be “based upon” the sufficiency of the aggravating circumstance(s) and the mitigating circumstanced) and their relative weights; and that “when the jury recommends a sentence of death,” it must sign a writing in which three questions are answered affirmatively and unanimously beyond a reasonable doubt.

From this statutory scheme the legislative intent clearly emerges. The legislature has sought to strike a balance between *41 fairness to the individual defendant and consistency among the cases in which the death penalty is imposed. It has designed a statute which avoids the two extremes of mandatory death penalties or unbridled discretionary action by juries. The legislature intended for the jury to consider: first, the sufficiency of the aggravating circumstance(s); second, whether any mitigating circumstance(s) exist which outweigh the aggravating circumstance(s); and third, based on these considerations whether to recommend a death sentence or life imprisonment. Only when the jury determines to recommend death is the jury required to sign a writing which shows its affirmative, unanimous findings that one or more statutory aggravating circumstances exist beyond a reasonable doubt, that they are sufficiently substantial to make the death penalty appropriate and that the mitigating circumstances do not outweigh the aggravating circumstances. 1 . Subsection (b) states in two places that the jury’s sentence recommendation is to be based on these considerations, not decreed by them. There is nothing in this scheme to suggest a legislative intent to require the jury to return a sentence of death even if it should answer the three crucial subsection (c) issues affirmatively, just as there is nothing in the statute which permits a jury to ignore the delineated considerations in its deliberations. To hold, as does the majority, that if affirmative answers in writing to these three issues are prerequisite to a jury’s recommendation of death, then death must be recommended when the prerequisites are met is, logically, a non sequitur.

This logical trap is easily sprung; it caught me in my dissent in State v. Rook, 304 N.C. 201 , 283 S.E.2d 732 (1981), cert. denied, --- U.S. --- (1982), where I lapsed into the same fallacy now being urged by the majority. 2 In Rook , however, both my dissent *42 and the majority opinion were addressing a different question, i.e., whether the jury was required to specify which mitigating factors it found to exist. The question now being addressed was not raised in Rook , and any conclusion about it was not necessary to the dissent. With the benefit of briefing, argument and my own research, I am convinced that my initial conclusion on the point here in issue, as I expressed it in Rook , was wrong, just as I believe the majority’s similar conclusion is wrong. The conclusion is not less a non sequitur because I once subscribed to it.

Our trial judges initially properly construed the statute to mean that if the jury answered the three issues affirmatively it could, but was not required to, recommend the death penalty. The first Pattern Jury Instruction promulgated after the statute provided that if the jury answered the crucial issues affirmatively then it “may recommend the death penalty.” N.C.P.I. Crim. 150.10, p. 5 (June 1977) (emphasis supplied). A subsequent revision of the instruction emphasized this point by providing that the jury “may, although [it] need not, recommend that the defendant be sentenced to death.” N.C.P.I. Crim. 150.10, p. 4 (Replacement, May 1979). These instructions, or a variation of them, have been followed in a large number of death penalty cases. 3

*43 After our decision in State v. Goodman, 298 N.C. 1 , 257 S.E. 2d 569 (1979), the Pattern Jury Instruction for our trial judges was changed so as to provide that if the jury answered the three issues affirmatively, it would be its “duty to recommend that defendant be sentenced to death.” N.C.P.I. Crim. 150.10, pp. 3-4 (Replacement, May 1980). The case cited in support of this change in the instruction is Goodman .

The issue in Goodman , however, was not whether the jury should be told it has a “duty” to recommend the death penalty if it answers the three issues affirmatively and unanimously. The issue in Goodman was whether, as the defendant contended, the trial court “should have explained to the jury that it had the option of returning a recommendation of life imprisonment even if aggravating circumstances were found to outweigh mitigating circumstances.” Brief for Defendant Appellant at 15-16. Defendant argued that “[i]t should be incumbent upon the trial Court to explain in detail that no mandatory recommendation of the death penalty is required regardless of findings as to aggravating and mitigating circumstances set forth in the statute.” Id.

Thus, defendant Goodman was arguing that the trial court should be required to explain to the jury that it could, in effect, ignore the considerations which by statute it must consider in recommending a life or death sentence. This goes far beyond the *44 permissive instruction actually given and upheld in Goodman, ie., the instruction that if the jury answered the three subsection (c) issues affirmatively and unanimously, it “may then recommend the death penálty.” (R. at 185).

The state’s brief in Goodman recognizes that “the Court left the jury with the understanding that, even should they find more aggravating than mitigating circumstances, they could still recommend life imprisonment .... At no point did the Court state that the jury could not recommend life imprisonment when the aggravating circumstances outweighed the mitigating. What the Court was saying was that (even where such aggravating circumstances appeared to be more substantial than mitigating circumstances) the jury could still recommend life imprisonment.” Brief for the state at 19-20.

The Court in Goodman answered the defendant’s argument as follows, 298 N.C. at 34-35, 257 S.E.2d at 590:

His argument is that without such instruction the jury will mathematically balance the two types of factors against each other and will impose the death penalty whenever aggravating circumstances outnumber mitigating ones. We do not agree that this is the manner in which a jury will reach its decision on this important question or that the instruction for which defendant contends is required by our statute.

It must be emphasized that the deliberative process of the jury envisioned by G.S. 15A-2000 is not a mere counting process. State v. Dixon, supra; State v. Stewart, supra. The jury is charged with the heavy responsibility of subjectively, within the parameters set out by the statute, assessing the appropriateness of imposing the death penalty upon a particular defendant for a particular crime. Nuances of character and circumstance cannot he weighed in a precise mathematical formula.

At the same time, we believe that it would be improper to instruct the jury that they may, as defendant suggests, disregard the procedure outlined by the legislature and impose the sanction of death at their own whim. To do so would be to revert to a system pervaded by arbitrariness and caprice. The exercise of such unbridled discretion by the jury *45 under the court’s instruction would be contrary to the rules of Furman and the cases which have followed it. For these reasons defendant’s seventh assignment of error is overruled. [Emphases supplied.]

The majority’s conclusion on this point in the instant case as well as the change in the Pattern Jury Instruction are based on a misreading of Goodman. Goodman simply recognized that, under the instructions as given, there would be no cause for the jury “mathematically” to balance the aggravating against the mitigating and “impose the death penalty whenever aggravating circumstances outnumber mitigating ones.” Goodman cautioned that juries should not be instructed in a manner which would cause them to “impose the sanction of death at their own whim.” Goodman does not support the proposition that a jury has a duty to impose the death penalty whenever it concludes that the statutory aggravating circumstances are sufficiently substantial to call for it and that the mitigating circumstances are insufficient to outweigh the aggravating. Goodman recognizes that given such determinations, a jury may yet opt for life imprisonment and notes that there is no way to escape some subjectivity in deciding who shall live and who shall die. Juries are called on in this kind of decision, we said in Goodman, to consider “[n]uances of character and circumstance [which] cannot be weighed in a precise mathematical formula.”

It is for this reason that a jury ought not be required to return the death penalty simply because it answers the crucial subsection (c) issues affirmatively. Conscientious juries may determine that these issues ought to be answered affirmatively and yet, because of circumstances of the case, “nuances,” if you will, not subject to articulation in a statute or a verdict and not perhaps articulable by the jurors themselves, feel impelled to recommend that the death penalty not be imposed. 4 We should *46 not construe our statute to require such a jury, nevertheless, to impose it.

Our statute is designed simply to insure that certain specific (subsection (c)) prerequisites are met before the death penalty is imposed. Its only prerequisites for the imposition of life imprisonment are that the jury base such a decision (subsection (b)) on a weighing against each other of various aggravating and mitigating circumstances which it may find to exist. Although the jury may not recommend death without specifically, and in writing, answering subsection (c) issues affirmatively, even if it does so it may yet recommend life.

The United States Supreme Court has made it quite clear that these kinds of death penalty or life imprisonment decisions do not result in the unbridled discretionary determinations found wanting in Furman v. Georgia, 408 U.S. 238 (1972)(per curiam). In Bullington v. Missouri, 451 U.S. 430 (1981), the Court had before it a Missouri death penalty statute very similar to ours. In Bull-ington, the Supreme Court noted that a Missouri jury “is instructed that it is not compelled to impose the death penalty, even if it decides that a sufficient aggravating circumstance or circumstances exist and that it or they are not outweighed by any mitigating circumstance or circumstances.” 451 U.S. at 434-35 . Although the question was not raised, there is no suggestion in Bullington that such a statute would be constitutionally infirm.

In Gregg v. Georgia, supra, 428 U.S. 153 , the Supreme Court considered a Georgia death penalty statute which provided that the jury could return a sentence of death only if it found the existence of one of ten statutorily specified aggravating circumstances. The jury was not required to return a death sentence even if it found the existence of one or more of the ten statutorily specified aggravating circumstances and was “not required to find any mitigating circumstance in order to make a recommendation of mercy.” Id. at 197. On appeal of his death sentence, defendant argued that because a Georgia jury had “the power to decline to impose the death penalty even if it finds that one or more *47 statutory aggravating circumstances are present,” the statute violated the Furman prohibition against unbridled discretion. Id. at 203. The United States Supreme Court answered by saying:

This contention misinterprets Furman .... Moreover, it ignores the role of the Supreme Court of Georgia which reviews each death sentence to determine whether it is proportional to other sentences imposed for similar crimes. Since the proportionality requirement on review is intended to prevent caprice in the decision to inflict the penalty, the isolated decision of a jury to afford mercy does not render unconstitutional death sentences imposed on defendants who were sentenced under a system that does not create a substantial risk of arbitrariness or caprice.

428 U.S. at 203 (emphasis supplied). In answering defendant’s contention that there were other discretionary decisions which could be made in the processing of a murder case which would result in some candidates for the death penalty actually escaping it, the Supreme Court said:

Nothing in any of our cases suggests that the decision to afford an individual defendant mercy violates the Constitution. Furman held only that, in order to minimize the risk that the death penalty would be imposed on a capriciously selected group of offenders, the decision to impose it had to be guided by standards so that the sentencing authority would focus on the particularized circumstances of the crime and the defendant.

428 U.S. at 199. Mr. Justice White, joined by the Chief Justice and Mr. Justice Rehnquist, said in a concurring opinion in Gregg :

The Georgia Legislature has plainly made an effort to guide the jury in the exercise of its discretion, while at the same time permitting the jury to dispense mercy on the basis of factors too intangible to write into a statute, and I cannot accept the naked assertion that the effort is bound to fail.

428 U.S. at 222 (emphasis supplied).

Finally, in Jurek v. Texas, supra, 428 U.S. 262 , the Supreme Court considered a Texas statute which required the jury to impose the death sentence if it answered three questions affirma- *48 lively. 5 The attack made on the Texas statute was that it created a mandatory death penalty in violation of the principles laid down in Woodson v. North Carolina, supra, 428 U.S. 280 , and Roberts v. Louisiana, supra, 428 U.S. 325 . The Supreme Court struggled with this question because the Texas statute appeared to have no provision for the jury to consider mitigating circumstances. “Thus,” the Court said, “the constitutionality of the Texas procedure turns on whether the enumerated questions allow consideration of particularized mitigating factors.” 428 U.S. at 272. The Court concluded that the jury’s consideration of mitigating circumstances, under the interpretation given the second question by the Texas Court of Criminal Appeals, was encompassed in its decision on that question. See supra note 5. Therefore, the Court concluded that the statute was not subject to the “mandatory death sentence” attack.

Apparently under the rationale of Jurek , the majority’s interpretation of our statute would pass constitutional muster. But I am satisfied that the interpretation for which I argue is more solidly supported in the decisions of the United States Supreme Court; whereas the majority’s view, which could be supported only by Jurek , is at least constitutionally suspect.

Assuming that we are free under the United States Constitution to opt for either interpretation, we should adopt the one which most nearly comports with the legislature’s intent as that intent is revealed in the plain words of the statute. The legislature has developed a statutory scheme designed to accommodate the twin “goals of measured, consistent application and fairness to the accused.” Eddings v. Oklahoma --- U.S. ---, ---, 102 S.Ct. 869, 874 , 71 L.Ed.2d 1, 8 (1982). In Goodman, supra, 298 *49 N.C. 1 , 257 S.E. 2d 569 , we held that instructions which, in effect, explained to the jury that it could ignore the procedure devised by the legislature were not authorized by our statute and would be contrary to the Furman standards. Likewise, instructions that tell the jury they must impose the death penalty if they answer certain questions affirmatively and unanimously are not authorized by our statute and fail to give appropriate weight to inar-ticulable, intangible “[njuances of character and circumstances.” State v. Goodman, supra, 298 N.C. at 34, 257 S.E. 2d at 590 .

Our statute, like the Supreme Court said of its decision in Lockett, 6 “is the product of a considerable history reflecting the law’s effort to develop a system of capital punishment at once consistent and principled but also humane and sensible to the uniqueness of the individual.” Eddings v. Oklahoma, supra, --- U.S. at ---, 102 S.Ct. at 874 , 71 L.Ed. 2d at 8 . Both the instructions disapproved in Goodman and those given in the instant case upset the statute’s finely tuned balance between consistency and sensibility to the uniqueness of an individual. The instruction sought by the defendant in Goodman tilts too much in favor of individualized consideration at the expense of consistency; whereas the instruction given here tilts too much in favor of consistency at the expense of individualized consideration.

The instruction most in keeping with the legislative design and which ought to be given in all cases is that recommended by the Superior Court Judges’ Pattern Jury Instruction Committee in May 1979. In that instruction jury members are told that if they answer the crucial issues affirmatively and unanimously, “you may, although you need not, recommend that the defendant be sentenced to death.” N.C.P.I. Crim. 150.10 at 4.

II.

At least two jurors were excluded for cause in the instant case in violation of the limitations imposed by Witherspoon v. Illinois, 391 U.S. 510 (1968), an opinion by Mr. Justice Stewart. Some particularly pertinent language of this landmark case bears repeating, 391 U.S. at 519 -23:

A man who opposes the death penalty, no less than one who favors it, can make the discretionary judgment entrusted to him by the State and can thus obey the oath he *50 takes as a juror. But a jury from which all such men have been excluded cannot perform the task demanded of it ... . [A] jury that must choose between life imprisonment and capital punishment can do little more —and must do nothing less —than express the conscience of the community on the ultimate question of life or death .... [A] jury composed exclusively of . . . people [who believe in the death penalty] cannot speak for the community. Culled of all who harbor doubts about the wisdom of capital punishment — of all who would be reluctant to pronounce the extreme penalty — such a jury can speak only for [those who believe in the death penalty]-

If the State had excluded only those prospective jurors who stated in advance of trial that they would not even consider returning a verdict of death, it could argue that the resulting jury was simply ‘neutral’ with respect to penalty. But when it swept from the jury all who expressed conscientious or religious scruples against capital punishment and all who opposed it in principle, the State crossed the line of neutrality. In its quest for a jury capable of imposing the death penalty, the State produced a jury uncommonly willing to condemn a man to die.

Specifically, we hold that a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction. No defendant can constitutionally be put to death at the hands of a tribunal so selected.

To execute [such a] death sentence would deprive him of his life without due process of law. [Footnotes omitted.] [Emphasis supplied. ]

Furthermore, id. at 522-23 n. 21,

a prospective juror cannot be expected to say in advance of trial whether he would in fact vote for the extreme penalty *51 in the case before him. The most that can be demanded of a venireman in this regard is that he be willing to consider all of the penalties provided by state law, and that he not be irrevocably committed, before the trial has begun, to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceedings. If the voir dire testimony in a given case indicates that veniremen were excluded on any broader basis than this, the death sentence cannot be carried out ....

We repeat, however, that nothing we say today bears upon the power of a State to execute a defendant sentenced to death by a jury from which the only veniremen who were in fact excluded for cause were those who made unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant’s guilt. [Emphasis original.]

The test applicable to this case then, under Witherspoon , for excuses for cause on death penalty opposition grounds is that the prospective juror must make it “unmistakably clear” that he or she would “automatically” vote against the death penalty “without regard to any evidence that might be developed at the trial of the case.” A juror who has scruples, or reservations, or who is even opposed to capital punishment, but who is not “irrevocably committed, before the trial has begun, to vote against [it] regardless of the facts and circumstances” that might be brought out at trial, may not be excused for cause. Neither may a juror who states merely that he or she has “ ‘a fixed opinion against’ capital punishment ” or that he or she does not “ ‘believe in’ capital punishment” be excused for cause, because such juror may yet “be perfectly able as a juror to abide by existing law — to follow conscientiously the instructions of a trial judge and to consider fairly the imposition of the death sentence in a particular case.” Boulden v. Holman, 394 U.S. 478, 483-84 (1969). Jurors may be excused for cause, however, if their opposition to the death penalty is so strong that they cannot take an oath to “follow the law” in trying the case. Lockett v. Ohio, 438 U.S. 586, 595-96 (1978) (plurality opinion).

*52 The United States Supreme Court’s latest decision applying Witherspoon is Adams v. Texas, 448 U.S. 38 (1980). In Adams the Court made it clear that Witherspoon must be followed even under post-Furman guided discretion capital sentencing procedures. Adams held that because of Witherspoon limitations jurors may not be excused for cause on the ground that their opposition to the death penalty might “affect” their deliberations on issues of fact which might arise in the case. 7 The Court said, 448 U.S. at 46 -47:

[A] Texas juror’s views about the death penalty might influence the manner in which he performs his role but without exceeding the ‘guided jury discretion,’ 577 SW2d, at 730, permitted him under Texas law. In such circumstances, he could not be excluded consistently with Witherspoon .

It said, further, 448 U.S. at 49-50 , that jurors were improperly excluded

who stated that they would be ‘affected’ by the possibility of the death penalty, but who apparently meant only that the potentially lethal consequences of their decision would invest their deliberations with greater seriousness and gravity or would involve them emotionally. Others were excluded only because they were unable positively to state whether or not their deliberations would in any way be ‘affected.’ But neither nervousness, emotional involvement, nor inability to deny or confirm any effect whatsoever is equivalent to an unwillingness or an inability on the part of the jurors to follow the court’s instructions and obey their oaths, regardless of their feelings about the death penalty. The grounds for excluding these jurors were consequently insufficient under the Sixth and Fourteenth Amendments. Nor in our view would the Constitution permit the exclusion of jurors from the penalty phase of a Texas murder trial if they aver that they will honestly find the facts and answer the questions in the affirmative if they are convinced beyond reasonable doubt, but not otherwise, yet who frankly concede that the prospects of the death penalty may affect what their honest judgment of the facts will be or what they may deem to be a *53 reasonable doubt. Such assessments and judgments by jurors are inherent in the jury system, and to exclude all jurors who would be in the slightest way affected by the prospect of the death penalty or by their views about such a penalty would be to deprive the defendant of the impartial jury to which he or she is entitled under the law.

If only one juror is excused for cause, in violation of Wither-spoon limitations, a sentence of death cannot stand. Davis v. Georgia, 429 U.S. 122 (1976)(per curiam). The Davis Court noted, 429 U.S. at 123 :

Unless a venireman is ‘irrevocably committed, before the trial has begun, to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceedings,’ 391 US, at 522 n 21, he cannot be excluded; if a venireman is improperly excluded even though not so committed, any subsequently imposed death penalty cannot stand.

This Court held in State v. Bernard, 288 N.C. 321, 325 , 218 S.E.2d 327, 330 (1975), that a juror could not be excused merely because “he thought he would automatically vote against the imposition of the death penalty regardless of the evidence.” (Emphasis original.)

Finally, the meaning of the voir dire colloquy is that which would be given it by the prospective juror rather than one trained in the law. “The critical question, of course, is not how the phrases employed in this area have been construed by courts and commentators. What matters is how they might be understood —or misunderstood —by prospective jurors.” Witherspoon v. Illinois, supra, 391 U.S. at 515 -16 n. 9 (quoted with approval in Boulden v. Holman, supra, 394 U.S. at 481-82 ).

Turning now to the challenges for cause here under attack, I am satisfied that prospective juror Mary Neal was excused for cause on broader grounds than Witherspoon permits. Neal, after an extended colloquy with the prosecutor, never expressed any categorical opposition to the death penalty. She simply said that she would have to be absolutely certain of a defendant’s guilt before she could vote to impose it. That portion of the colloquy which accurately reflects her attitude is the following:

*54 Q. Do you have any objection to the death penalty?

A. Well, that’s a hard question to answer.

Q. Yes, ma’am.

A. I’ve never been able to answer it like a cut dried thing. It’s hard for me, very hard for me to make decisions, I’ve never been able to make decisions very well. I had someone to help me, but I’m hard to convince too. I almost have to see something before I could really say so. That’s the only way I know to answer you.

Q. Let me ask that question a different way, Mrs. Neal, if you’re a member of this jury and we get to the second part of the trial, that means you’ve already found him guilty of murder in the first degree in one or both cases, based on the evidence in this case, what happened in this case and based on the law that Judge Walker gives to you, as he tells you the law, if you deem it to be appropriate, could you impose the death penalty?

A. I don’t think so, I really don’t believe so.

Q. I understand this is a tough area, but we have to inquire about this now and everyone is entitled to their own opinion. Are you saying, ma’am, that you could not and you would not vote to impose the death penalty in this case, regardless of the evidence?

A. I don’t know. I guess if it was proven to me, I guess I could.

Q. If what was proven to you?

A. I would have to be —I would have to absolute know for sure, I mean no doubt whatsoever.

Q. As a juror, can you envision a situation where you would impose the death penalty, you’re not going to be an eyewitness, you’re going to have to act on what other people tell you they saw or heard.

*55 A. Okay, already proven guilty — if I went along with the guilty part, if I decided they were guilty — no, I will not.

Q. You could not impose the death penalty regardless of what the evidence is?

A. I don’t believe so.

Mr. WANNAMAKER: If your Honor please, we challenge for cause.

THE COURT: I understand, Mrs. Neal. I know this is very difficult for you, but it’s necessary to have your candid and frank answers and I thank you for them.

Do I understand that you could not even before you hear the testimony under any circumstances, impose the death penalty?

MARY D. Neal: No, I just don’t think so.

At most, Neal’s attitude toward the death penalty “affected” her deliberations on the guilt phase of the case in the sense that she would have to be absolutely certain of defendant’s guilt. “[P]rospects of the death penalty may affect what [a juror’s] honest judgment of the facts will be or what [a juror] may deem to be a reasonable doubt,” Adams v. Texas, supra, 448 U.S. at 50 , without the juror’s subjection on that ground to a challenge for cause. Neal never “unmistakably” said that she would not impose the death penalty, or that she would “automatically” vote for life imprisonment, regardless of what the evidence might show. She said she didn’t “believe” and didn’t “think” she could vote for death. She never said, absolutely, that she could or would not. She should not have been excused for cause.

Prospective juror Frank Rogers said, “I don’t go for [the death penalty] too much” and “I don’t think much of the death penalty.” He never said he was categorically opposed to the death penalty. When asked whether he could consider imposing the death penalty, the following occurred:

A. I can consider, but as I say—

Q. You tell me you would consider it but then you wouldn’t do it, is that what you are saying?

*56 Mr. Harrison: Objection.

A. (By witness) I said I would lean toward life imprisonment, if you want me to tell the truth about it, that’s what I’m doing.

At that point, the court intervened as follows:

THE COURT: Mr. Juror, are you saying that before you have heard any evidence in this case, Mr. Rogers, if the defendant should be found guilty of either charge of murder in the first degree, without hearing any evidence, that under no circumstances would you return a verdict which would result in the imposition of the death penalty?

Mr. ROGERS: That is true.

Thus Rogers did not say that he could or would not impose the death penalty or that he would automatically vote for life imprisonment, regardless of evidence that might be introduced at the trial. He said he could not impose it under any circumstances “without hearing any evidence.” Obviously, the learned trial judge was attempting to ask Rogers whether he could impose it under any circumstances regardless of what evidence adduced at trial might show, and to one trained in the law that is what the court’s question might mean. To Rogers, a layman, the question could mean no more than what the words actually used by the trial judge would ordinarily convey. Roger’s position, then, was simply that he could not impose the death penalty until he at least had heard some evidence in the case. The thrust of the entire colloquy seems to be that, depending on what the evidence adduced tended to show, Rogers could consider the death penalty, that he tended to favor life imprisonment, but that he would not convince himself one way or the other without hearing some evidence. Rogers should not have been excused for cause.

III.

The majority concludes that the trial court did not err in refusing to submit both in his instructions and on the written list defendant’s “relatively low mentality” as a mitigating circumstance because there was no evidence to support it and, even if there had been supporting evidence, the error could not have been prejudicial. As the majority correctly notes, a defendant’s *57 low mentality, if it exists, is “properly considered in mitigation of a capital felony.”

I cannot agree with the majority that the evidence does not support defendant’s “relatively low mentality” mitigating circumstance. Defendant’s psychiatric witness, Dr. Billy Royal, testified that defendant scored 66 on an intelligence test; but, he said, “[w]e felt that his other tests indicated that his I.Q. was probably a little higher than that and fell at least into the low-normal range of intelligence.” Apparently the majority concludes that any intelligence quotient which is within a “normal range” cannot be considered by a jury in a capital case unless it is proffered by the defendant as an absolute score on an intelligence test. The majority concludes that if it is proffered under the label “relatively low mentality,” rather than as a raw score, it may not be considered.

I simply cannot subscribe to, nor do I really understand, the distinction drawn by the majority. Any kind of absolute score on an intelligence test, in order to be meaningful to a lay jury or for that matter to lawyers and judges, needs explanation by competent expert testimony. The testimony in this case was that defendant’s intelligence was in the “low-normal range.” Defendant asked that his “relatively low mentality” be submitted as a mitigating circumstance. The evidence supports that he did have a “relatively low mentality.” It should be for the jury to assess this quality in terms of its mitigating effect. It is not for the court to say that the jury could not, as a matter of law, consider a person’s “relatively low mentality” as a mitigating circumstance because the mentality is within the outer limits of “normal.” To me, the phrase “relatively low mentality” accords precisely with the evidence which was introduced. A person whose intelligence is in the low-normal range must perforce have a relatively low mentality. Contrary to the majority’s conclusion, the terms are synonymous.

Neither on this record am I able to say that not permitting the jury to consider this mitigating circumstance was harmless beyond a reasonable doubt. Not to permit a jury to consider any relevant mitigating circumstance is an error of constitutional dimension. Eddings v. Oklahoma, supra, --- U.S. ---, 102 S.Ct. 869 , 71 L.Ed.2d 1 ; Lockett v. Ohio, supra, 438 U.S. 586 . Before we *58 can deem such an error harmless, we must be satisfied “that it was harmless beyond a reasonable doubt.” Chapman v. California, 386 U.S. 18, 24 (1967); G.S. 15A-1443(b). The burden is upon the state to so demonstrate. Id.

Of the ten mitigating circumstances submitted, we know from the record only that the jury found “one or more.” We do not know how many beyond one it found. It is possible that the jury found only one mitigating circumstance to exist out of the list of ten. If it did, the failure to submit an additional mitigating circumstance which should have been submitted and which the jury could have found to exist might well have made a difference in the jury’s ultimate recommendation. At least I cannot say beyond a reasonable doubt that it would not have made a difference.

The United States Supreme Court has recently recognized that a youthful defendant’s mental development is a significant mitigating circumstance. Eddings v. Oklahoma, supra, was a capital case in which, under Oklahoma procedure, the sentencing decision was made by the trial judge. The judge, after hearing evidence, found all of three alleged aggravating circumstances to exist beyond a reasonable doubt. He also found that the youth of the defendant (age sixteen) was a mitigating circumstance “of great weight.” The trial judge, however, did not believe he could consider “the fact of this young man’s violent background.” Id. at ---, 102 S.Ct. at 873 , 71 L.Ed. 2d at 7 (emphasis original). For failure of the trial judge to consider this additional mitigating circumstance, the United States Supreme Court set aside the death penalty and remanded for further proceedings. The Court said, id. at ---, 102 S.Ct. at 877 , 71 L.Ed. 2d at 12 :

[J]ust as the chronological age of a minor is itself a relevant mitigating factor of great weight, so must the background and mental and emotional development of a youthful defendant be duly considered in sentencing. [Emphases supplied.]

In the case at bar the trial judge’s refusal to submit and instruct on defendant’s “relatively low mentality” as a mitigating circumstance deprived the defendant of his right to have the jury consider his “mental . . . development.” The error was not cured by submitting to the jury the catchall language of the tenth mitigating circumstance when it was unaccompanied by any *59 specific instruction relating to the particular circumstance of defendant’s low mentality.

For the foregoing reasons, I vote to vacate the death sentence imposed in this case and to remand for a new sentencing hearing. I concur in the majority’s conclusion that there was no prejudicial error in the guilt phase of the case.

IV.

This is yet another in a growing number of cases in which a majority of the Court has affirmed the death penalty and in conducting its statutorily mandated “proportionality review” of the death sentence has failed to advise the bar of the manner in which it conducts such a review. The majority, unlike courts in other jurisdictions which have statutes similar to ours, has yet to tell the bar whether its review is based on comparisons with those cases in which the death sentence was imposed at trial and affirmed on appeal, or with those cases in which the jury could have recommended the death penalty but instead recommended life imprisonment and which have been reviewed on appeal, or with cases from some other kind of pool. It is time for the majority to declare itself on this important question, and I urge it to use as a pool for comparison purposes all cases tried under the new death penalty statute, whether the jury recommended death or life imprisonment and which have been reviewed on appeal by this Court.

The statute, G.S. 15-2000(d)(2), requires us to impose a life sentence if we find that a death sentence imposed by the trial court “is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.” This language is identical to language in Georgia’s death penalty statute. See Ga. Code Annot. § 27-2537(c)(3) (1978). The Georgia Supreme Court looks to all appealed murder cases, whatever the sentence imposed, in making its comparisons. Ross v. State, 233 Ga. 361, 365-66 , 211 S.E. 2d 356, 359 (1974), cert. denied, 428 U.S. 910 (1976). 8 In sustaining the Georgia death penalty statute, the *60 United States Supreme Court relied on the Georgia Supreme Court’s proportionality review safeguard. Of it, the United States Supreme Court said in Gregg v. Georgia, supra, 428 U.S. at 206:

In particular, the proportionality review substantially eliminates the possibility that a person will be sentenced to die by the action of an aberrant jury. If a time comes when juries generally do not impose the death sentence in a certain kind of murder case, the appellate review procedures assure that no defendant convicted under such circumstances will suffer a sentence of death. [Emphasis supplied.]

The Florida Supreme Court in conducting its proportionality review also compares all appealed murder cases, including those where a sentence less than death was imposed. It has concluded that ignoring life sentences imposed in factually similar cases would make its review procedure constitutionally defective. McCaskill v. State, 344 So. 2d 1276 (Fla. 1977) (per curiam).

The plain words of our statute require that we compare the case before us not only with similar cases in which the death penalty has been imposed but with similar cases in which the jury was permitted to consider it but decided instead to recommend life imprisonment. The basic purpose of proportionality review is to make sure that the death sentence in the case before us is not “excessive” to sentences “imposed in similar cases.” If we look for comparison only to cases in which the death penalty has been imposed, the sentence in the case under review could never be excessive because one death sentence never “exceeds” another. It is only by comparing the case being reviewed in which a death sentence was imposed with other similar cases in which life was imposed that we can determine whether the death penalty in the case being reviewed is really excessive to the penalty being imposed in similar caes. For, to reiterate what the Supreme Court said in Gregg v. Georgia, supra, if there are certain kinds of murder cases in which our juries are generally not recommending death, then an occasional death sentence imposed in those kinds of cases ought to be set aside by this Court. 9

*61 We ought not limit ourselves only to cases where the death sentence was imposed and affirmed. To do so means that we only ask whether the case under review is as bad as the other death cases. The legislature intended us not only to make that determination but also to determine whether the case under review is more deserving of the death penalty than similar cases in which life sentences have been imposed. The statute’s plain language requires that we make both kinds of comparisons. Of the two, the latter is the more meaningful and is probably constitutionally required.

Further, by using only other death sentence cases affirmed on appeal, the Court severely limits the pool of cases available for comparison. Since the effective date of our capital punishment statute, 7 June 1977, there have been only six such cases. See State v. Taylor, 304 N.C. 249 , 283 S.E. 2d 761 (1981); State v. Rook, supra, 304 N.C. 201 , 283 S.E. 2d 732 ; State v. Hutchins, supra, 303 N.C. 321 , 279 S.E. 2d 788 ; State v. Martin, 303 N.C. 246 , 278 S.E. 2d 214 , cert. denied, --- U.S. ---, 102 S.Ct. 431 , 70 L.Ed. 2d 240 (1981); State v. McDowell, 301 N.C. 279 , 271 S.E. 2d 286 (1980), cert. denied, 450 U.S. 1025 (1981); State v. Barfield, 298 N.C. 306 , 259 S.E. 2d 510 (1979), cert. denied, 448 U.S. 907 (1980). The statute requires that we compare factually “similar” cases. Similar cases for comparison purposes are simply not present in such a small sampling. The Court should want to expand, rather than restrict, the pool of cases so that truly similar cases will be more quickly available and we can begin to make the comparisons which the statute requires.

The bar is entitled to know upon what basis we are conducting the proportionality review mandated by the statute. Defendant Pinch has expressly and reasonably requested that we provide this knowledge. We should grant the request. We should not continue to keep the manner in which we perform this duty shrouded in mystery.

. Although the jury is not required by statute to answer these questions unless they recommend death, I believe documentation of the jury’s findings in every capital sentencing proceeding, whether they recommend death or life, is necessary for this Court’s use in conducting its proportionality review required under G.S. 15A-2000(d)(2).

. In Rook, supra, I wrote:

Indeed, in Georgia, the jury may return a death sentence upon finding one or more aggravating circumstances, no matter how it regards the mitigating circumstances. In contrast, under our statute the jury may return a death sentence recommendation only if it finds: (1) the existence of one or more ag *42 gravating circumstances; (2) that the aggravating circumstance(s) found by it are sufficiently substantial to call for the imposition of the death penalty; and (3) that the mitigating circumstances are insufficient to outweigh the aggravating circumstances. The clear import of our statute is that a jury, upon finding the requisite existence of aggravating circumstances and their sufficient substantiality, may not recommend life imprisonment unless it further finds that the mitigating circumstances are sufficient to outweigh the aggravating circumstances.

304 N.C. at 242-43, 283 S.E. 2d at 757 (emphasis original) (footnote omitted).

. See, e.g., State v. Silhan, 302 N.C. 223 , 275 S.E. 2d 450 (1981) (R. at 192, “you may recommend death”); State v. Detter, 298 N.C. 604 , 260 S.E. 2d 567 (1979) (R. at 238, “you may recommend”); State v. Johnson, 298 N.C. 355 , 259 S.E. 2d 752 (1979) (R. at 111, “you may recommend”); State v. Spaulding, 298 N.C. 149 , 257 S.E. 2d 391 (1979) (R. at 333, “Based upon these considerations as instructed by the Court, you will advise the court whether the defendant should be sentenced to life imprisonment or death”); State v. Cherry, 298 N.C. 86 , 277 S.E. 2d 551 (1979), cert. denied, 446 U.S. 941 (1980) (R. at 341, “Based upon these considerations as instructed by the Court, you will advise the Court whether the defendant should be sentenced to life imprisonment or death”); State v. Goodman, 298 N.C. 1 , 257 S.E. 2d 569 (1979) (R. at 185, “you may then recommend the death penalty”); State v. Jones, 296 N.C. 495 , 251 S.E. 2d 425 (1979) (R. at 276, “you may — but are not compelled to — recommend the death penalty”).

*43 Other cases reviewed by this Court have contained instructions which went even further in telling the jury that the death sentence was not mandated by affirmative answers to the crucial issues. For example, in State v. Oliver, 302 N.C. 28 , 274 S.E. 2d 183 (1981) (R. at 668), the jury was told:

Unless you have answered Issues One, Two, Four ‘yes’ you must recommend that a defendant in a given case be sentenced to life. Only if you have answered Issues One, Two and Four ‘yes’ may you recommend that a defendant be sentenced to death. Even then, though, you are not required to do so. You still may recommend life imprisonment. However, if you answered Issues One, Two and Four ‘yes’ you are, on further deliberations, satisfied beyond a reasonable doubt that the only just punishment for this defendant is —a given defendant in a given case, is the death penalty, then you may so recommend it; realizing, of course, the tremendous responsibility which rests on your shoulders when you make that recommendation.

See, also, State v. Hutchins, 303 N.C. 321 , 279 S.E. 2d 788 (1981) (R. at 231, “you would then further deliberate upon your sentence recommendation”); State v. Small, 301 N.C. 407 , 272 S.E. 2d 128 (1980) (R. at 618, “Even though you are not required to do so, you may still recommend life in prison”).

. Indeed, juries have answered the crucial subsection (c) issues affirmatively and yet either recommended life imprisonment, State v. King, 301 N.C. 186 , 270 S.E.2d 98 (1980); State v. Taylor, 298 N.C. 405 , 259 S.E.2d 502 (1979); or were unable unanimously to agree on a sentence, thus requiring the judge to impose a life sentence pursuant to 6.S. 15A-2000(b). State v. Silhan, 302 N.C. 223 , 275 S.E.2d 450 (1981), on resentencing in Columbus Superior Court (Case No. 79CRS1943); State v. Easterling, 300 N.C. 594 , 268 S.E.2d 800 (1980).

*46 At least one jury has found ambiguity in the “Issues and Recommendation as to Punishment” form generally submitted to juries deliberating on sentences in capital cases. State v. Lake, 305 N.C. 143 , 286 S.E.2d 541 (1981) (copy found in Case No. 80CRS5530, Onslow Superior Court).

. The questions are these:

(1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result;

(2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and

(3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased.

See 428 U.S. at 269 (quoting Tex. Code Crim. Proc., art. 37.071(b) (Supp. 1975-76)).

. Lockett v. Ohio, 438 U.S. 586, 604 (1978) (plurality opinion).

. See supra note 5 and accompanying text.

. The Georgia Supreme Court also noted “that nothing in the statute forecloses this court during the course of its independent review from examining non-appealed cases and cases in which the defendant pleaded guilty to a lesser offense.” Ross v. State, supra, 233 Ga. at 366 , 211 S.E. 2d at 359 .

. In my dissenting opinion in State v. Rook, supra, 304 N.C. at 245-46, 283 S.E. 2d at 758-59 , I pointed out that rarely do juries in this state impose the death penalty in cases where a defendant was found to have been under the influence of a mental or emotional disturbance or whose capacity to appreciate the criminality of *61 his conduct or to conform his conduct to law was impaired. I suggested that this Court should be slow to affirm death penalties in which either of these mitigating circumstances was found to exist because the penalty might well be excessive to the penalty imposed generally by juries in these kinds of cases.