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Dissenting Opinion

United States Supreme Court

494 U.S. 433

McKoy  v.  North Carolina

No. 88-5909  Argued: Oct. 10, 1989. --- Decided: March 5, 1990


Petitioner was convicted in a North Carolina court of first-degree murder. In the trial's sentencing phase, the jury made a binding recommendation of death after finding unanimously, as required by instructions given both orally and in a written verdict form: (1) the existence of two statutory aggravating circumstances; (2) the existence of two of eight possible mitigating circumstances; (3) that the mitigating circumstances found were insufficient to outweigh the aggravating circumstances found; and (4) that the aggravating circumstances found were sufficiently substantial to call for the imposition of the death penalty when considered with the mitigating circumstances found. The State Supreme Court rejected petitioner's challenge to his sentence, distinguishing Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384. In Mills, this Court reversed a death sentence imposed under Maryland's capital punishment scheme because that scheme precluded a jury from considering any mitigating evidence unless all 12 jurors agreed on the existence of a particular circumstance supported by that evidence. In contrast to the Maryland procedure, which required the jury to impose a death penalty if it found at least one aggravating circumstance and no mitigating circumstances or unanimously agreed that the mitigating circumstances did not outweigh the aggravating ones, the court emphasized that Issue Four in North Carolina's scheme allowed the jury to recommend life imprisonment if it felt that the aggravating circumstances did not call for the death penalty even if it had found several aggravating circumstances and no mitigating ones. The court also reasoned that whereas in Maryland's scheme evidence remained "legally relevant" as long as one or more jurors found the presence of a mitigating circumstance supported by that evidence, in North Carolina's system any evidence introduced to support a mitigating factor that the jury did not unanimously find is legally "irrelevant" and can be excluded from jurors' consideration.

Held: North Carolina's unanimity requirement impermissibly limits jurors' consideration of mitigating evidence and hence is contrary to this Court's decision in Mills, supra. The State's Issue Four does not ameliorate the constitutional infirmity created by the requirement. Although the jury can opt for life imprisonment without finding any mitigating circumstances, it is required to make its decision based only on the circumstances it unanimously finds in Issue Two. Thus, one holdout juror can prevent the others from giving effect to evidence they feel calls for a lesser sentence; moreover, even if all the jurors agree that there are some mitigating circumstances, they cannot give effect to evidence supporting any of those circumstances unless they agree unanimously on the same circumstance. In addition, the state court's holding distorts the concept of relevance. The mitigating circumstances not unanimously found to be present by the jury did not become "irrelevant" to mitigation merely because one or more jurors either did not believe that the circumstance had been proved as a factual matter or did not think that the circumstance, though proved, mitigated the offense. Furthermore, the mere declaration that evidence is "legally irrelevant" cannot bar the consideration of that evidence if the sentencer could reasonably find that it warrants a sentence less than death. Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1; Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1. The State misplaces its reliance on Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281, to support its view that the unanimity requirement is a standard of proof intended to ensure the reliability of mitigating evidence, as Patterson did not involve the validity of a capital sentencing procedure under the Eighth Amendment, which requires States to allow consideration of mitigating evidence. It is no answer that the jury is permitted to "consider" mitigating evidence when it decides collectively, under Issue Two, whether any mitigating circumstances exist. Mills requires that each juror be permitted to consider and give effect to mitigating evidence when deciding the ultimate question whether to vote for a death sentence, a consideration that may not be foreclosed by one or more jurors' failure to find a mitigating circumstance under Issue Two. Moreover, requiring unanimity on mitigating factors is not constitutional merely because the State also requires unanimity on aggravating circumstances. Penry v. Lynaugh, 492 U.S. 302, 327-328, 109 S.Ct. 2934, 2951-2952, 106 L.Ed.2d 256. Pp. 439-444.

323 N.C. 1, 372 S.E.2d 12 (1988), vacated and remanded.

MARSHALL, J., delivered the opinion of the Court, in which BRENNAN, WHITE, BLACKMUN, and STEVENS, JJ., joined. WHITE, J., post, p. 444, and BLACKMUN, J., post, p. 445, filed concurring opinions. KENNEDY, J., filed an opinion concurring in the judgment, post, p. 452. SCALIA, J., filed a dissenting opinion, in which REHNQUIST, C.J., and O'CONNOR, J., joined, post, p. 457.

Malcolm Ray Hunter, Jr., Raleigh, for petitioner.

Joan Herre Byers, Raleigh, for respondent.

Justice MARSHALL delivered the opinion of the Court.


This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).