Justice MEYER dissenting.

Justice MITCHELL joins in this dissenting opinion.

WHICHARD, Justice.

Defendant was convicted of the first-degree murder of Van Buren Luther and sentenced to death. This Court found no error in the guilt phase of defendant's trial but ordered a new sentencing proceeding. State v. Quesinberry, 319 N.C. 228, 354 S.E.2d 446 (1987). Following the new sentencing proceeding, defendant was again sentenced to death. This Court found no error and upheld the sentence. State v. Quesinberry, 325 N.C. 125, 381 S.E.2d 681 (1989).

Subsequently, the United States Supreme Court vacated the judgment and remanded the case to this Court for further consideration in light of McKoy v. North Carolina, 494 U.S. 433, 108 L.Ed.2d 369 (1990). Quesinberry v. North Carolina, ___ U.S. ___, 108 L.Ed.2d 603 (1990). On 3 October 1990 this Court ordered the parties to file supplemental briefs addressing the McKoy issue.

The evidence supporting defendant's conviction and death sentence is summarized in this Court's prior opinions — State v. Quesinberry, 325 N.C. 125, 381 S.E.2d 681; State v. Quesinberry, 319 N.C. 228, 354 S.E.2d 446 — and will not be repeated here except as necessary to discuss the question before us on remand by the United States Supreme Court.

In McKoy v. North Carolina, the United States Supreme Court held unconstitutional under the eighth and fourteenth amendments of the federal constitution jury instructions directing that, in making the final determination of whether death or life imprisonment is imposed, no juror may consider any circumstance in mitigation of the offense unless the jury unanimously concludes that the circumstance has been proved. McKoy, 494 U.S. 433, 108 L.Ed.2d 369. Our review of the record reveals, and the State concedes, that the jury here was so instructed. Specifically, the trial court instructed the jury to answer each mitigating circumstance "no" if it did not unanimously find the circumstance by a preponderance of the evidence. Thus, the sole issue is whether this is the "rare case in which a McKoy error could be deemed harmless." State v. McKoy, 327 N.C. 31, 44, 394 S.E.2d 426, 433 (1990). "The error . . . is one of federal constitutional dimension, and the State has the burden to demonstrate its harmlessness beyond a reasonable doubt." Id.; N.C.G.S. 15A-1443 (b) (1988). On the record before us, we conclude that the State has not carried this burden.

The trial court submitted ten possible mitigating circumstances:

1) Michael Ray Quesinberry has no significant history of prior criminal activity.

2) The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was impaired because he was under the influence of drugs.

3) The age of the defendant at the time of the murder.

4) Prior to July 20, 1984, Michael Ray Quesinberry had no prior history of assaultive behavior.

5) Since the arrest of the defendant for the offense before you the defendant has adapted well to life in custody and the defendant has shown no tendancies [sic] for violence against others.

6) The defendant voluntarily confessed to the crime after being warned of his right to remain silent and without asking for or without assistance of counsel.

7) Upon his arrest, the defendant cooperated with law enforcement officers.

8) The crime committed by the defendant was out of character for the defendant.

9) The defendant is remorseful for the crime.

10) Any other circumstances arising from the evidence.

The jury unanimously found circumstances (1) and (4)-(9). Acting under the constitutionally defective instruction recited above, it rejected circumstances (2), (3) and (10).

The evidence relevant to the first of the submitted mitigating circumstances not found — "[t]he capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was impaired because he was under the influence of drugs" — was from defendant's testimony and was as follows:

Defendant, who was twenty-two years old on the date of the murder, had been "smoking pot and drinking alcohol" since he was fourteen. By age fifteen-and-a-half he "was smoking pot, smoking hash, doing acid, speed." At about age seventeen-and-a-half, defendant entered the United States Army. He consumed illicit drugs and alcohol throughout his Army career. The Army ultimately sent him to a drug and alcohol rehabilitation center. When defendant finished his "schooling" at the center, he still tested positive for drugs, and the Army discharged him.

Upon his discharge defendant lived with his parents briefly, then married and moved in with his wife's parents. He continued to smoke marijuana and take other illegal drugs. He "was smoking pot, doing acid, speed, and smoking hash, and cocaine every now and then." He had a "physical need for the dependency of these drugs."

In the early part of 1984, an acquaintance arranged for defendant to find employment in Randolph County, North Carolina, the locale of the murder. He first acquired drugs there after two days on the new job. He never had trouble getting drugs in the plant or in the community.

On 20 July 1984, the day of the murder, defendant left home for work about 7:00 a.m. He smoked a marijuana cigarette on the way to work. During a 9:15 a.m. break, he "smoked a joint." Thus, by 9:15 a.m. he had smoked two joints of marijuana. Between the break and lunchtime, he smoked another joint. At lunchtime defendant and a co-worker smoked a joint. This was his fourth joint for the day. Shortly thereafter, defendant "swapped a marijuana cigarette for some beer." He drank two beers and felt "high." He returned to work for a while and "started feelin' worse," so he went out and smoked another joint. He smoked this, his fifth joint for the day, "somewhere around" 1:00 p.m.

Defendant then left the plant and went to the victim's store. The precise time he inflicted the blows which resulted in the victim's death is unknown, but the victim's unconscious body was found around 1:37 p.m.

The evidence thus demonstrated a pattern of drug and alcohol abuse extending over a period of approximately eight years. More relevantly, it showed that over the approximately six to six-and-one-half hours immediately preceding the murder, defendant consumed two beers and smoked five marijuana cigarettes. In light of this evidence, we cannot conclude beyond a reasonable doubt that the erroneous unanimity jury instruction did not preclude one or more jurors from considering in mitigation defendant's drug intoxication as diminishing his capacity to appreciate the criminality of his act or to conform his conduct to the requirements of the law. Nor can we conclude beyond a reasonable doubt that had such jurors been permitted, under proper instructions, to consider this circumstance, they would nevertheless have voted for the death penalty rather than life imprisonment. See State v. Sanderson, 327 N.C. 397, 403, 394 S.E.2d 803, 806 (1990).

In support of its argument that the error was harmless the State points to evidence tending to indicate that defendant continued to function normally despite the consumption of drugs and alcohol shown. Such evidence notwithstanding, one or more jurors, acting under constitutional instructions, may well give the greater weight to defendant's testimony that he felt "high" and to their understanding of the effects of such extensive consumption, both over time and more immediately, on defendant's capacity to appreciate the criminality of his conduct and to conform his conduct to the requirements of law. Because the circumstance in question is statutory, N.C.G.S. 15A-2000 (f)(6), it is presumed to have mitigating value if found. State v. Pinch, 306 N.C. 1, 27, 292 S.E.2d 203, 224, cert. denied, 459 U.S. 1056, 74 L.Ed.2d 622 (1982), overruled in part on other grounds, State v. Wilson, 322 N.C. 117, 367 S.E.2d 589 (1988). A single juror's vote could change the sentencing result from death to life imprisonment. State v. Brown, 327 N.C. 1, 30, 394 S.E.2d 434, 452 (1990). Given the evidence, we cannot conclude beyond a reasonable doubt that the constitutionally erroneous instruction did not prevent at least one juror from finding the circumstance to exist, giving it mitigating value, and changing his or her vote from death to life imprisonment as a result.

Accordingly, the sentence of death is vacated, and the case is remanded to the Superior Court, Randolph County for a new capital sentencing proceeding. See State v. McNeil, 327 N.C. 388, 397, 395 S.E.2d 106, 112 (1990). Our disposition on the impaired capacity circumstance makes it unnecessary for us to consider the effect of the constitutionally erroneous instruction on the other mitigating circumstances not found.

Death sentence vacated; remanded for new capital sentencing proceeding.