concurring:
I concur in Parts I through V of the opinion written by Judge Niemeyer and Judge Gregory. I also concur in Judge Gregory’s plurality opinion stating that Allen is entitled to habeas relief based on the unconstitutional unanimity instruction given to the jury at his sentencing hearing. I write separately to add an additional comment regarding the prejudicial effect of this instruction.
As described in Judge Gregory’s plurality opinion, the jury — operating under the constraints of this improper instruction— accepted three of the mitigating circumstances submitted to it (because all 12 jurors agreed) but rejected seven others (because at least one juror did not agree). One of the mitigating circumstances that the jury did not unanimously accept was the statutory “catch-all,” which allows the jury to consider any “circumstance or circumstances arising from the evidence which you, the jury, deem to have mitigating value,” id. at 101; see N.C. GemStat. § 15A-2000(f)(9) (2003). This catch-all mitigator permits jurors to consider, inter alia, whether the evidence sup-ports imposition of a life sentence on grounds of mercy. See State v. Hill, 331 N.C. 387, 417 S.E.2d 765, 782-83 (1992) (noting that jurors in North Carolina are not precluded from giving effect to feelings of sympathy arising from the defendant’s mitigating evidence).
The evidence here showed that Allen had a close relationship with some members of his family, including the eldest of his three sons. A reasonable juror could have concluded that Allen should be spared from the death penalty so that his children would not lose their father. Un*332der the unconstitutional unanimity instruction given at Allen’s sentencing hearing, however, that juror would have been precluded from voting for a life sentence based on these sincere feelings of mercy. Indeed, even if eleven jurors had decided that mercy should be shown, they would not have been able to do so as long as the remaining member of the jury disagreed.
I recognize that the record includes evidence that might have offset any sympathy the jury felt for Allen and his family, including evidence that Allen’s victim had a wife and two children of his own. On the other hand, given the broad discretion that jurors have when voting for a life or death sentence, at least one juror could have concluded that taking a father from Allen’s children would only compound the great tragedy inflicted on Trooper Worley’s children. Cf. N.C. GemStat. § 15A-2000(b) (2003) (requiring the imposition of a life sentence when a capital sentencing jury is unable to reach a unanimous decision within a reasonable time).
It is not for us to decide which of these views is more sound, nor do I suggest that I would have concluded that a life sentence was appropriate. Our role is only to assess the likelihood that, in the absence of the unconstitutional instruction, at least one juror would have found as a mitigating factor that Allen deserved mercy and would have concluded that this factor, combined with others supported by the evidence, outweighed the aggravating circumstances established by the prosecution.* Based on my experiences as a trial judge and prosecuting attorney, I conclude that this possibility is sufficiently great that I remain in grave doubt about whether the error was harmless. See O’Neal v. McAninch, 513 U.S. 432, 434, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995). I therefore vote to remand this case to the district court with instructions to issue a conditional writ of habeas corpus.
Judge Motz has requested that she be shown as joining in this opinion.
The jury found two aggravating factors: that Allen committed murder "for the purpose of avoiding a lawful arrest,” and that "this murder [was] committed against a law enforcement officer while engaged in the performance of his official duties.” J.A. 99-100. Although the murder was unquestionably brutal, the jury was not asked to find any aggravating circumstance based on the nature of the killing. Cf., e.g., N.C. Gen.Stat. § 15A-2000(e)(9) (2003) (establishing as an aggravator that the crime of conviction was "especially heinous, atrocious, or cruel”). Thus, in assigning weight to the aggravating factors it had found, the jury was not permitted to consider the brutality of the murder for which Allen was convicted. We must bear this restriction in mind in assessing the likelihood that, but for the unconstitutional unanimity instruction, at least one juror would have voted for a life sentence.