EXUM dissenting.
Believing that there is reversible error in both the guilt and sentencing phases of this capital case, I dissent and vote for a new trial.
Guilt Phase
The majority assumes without deciding that it was error to admit the testimony of Billie Ann Woods that defendant had attempted to assault her sexually approximately nine years before the event for which defendant was being tried. I believe the admission of the evidence was error because of the remoteness in time of the earlier offense. State v. Jones, 322 N.C. 585, 369 S.E.2d 822 (1988) (evidence of prior sexual assault improperly "admitted in rape prosecution when prior assault occurred seven years before the rape); State v. Scott, 318 N.C. 237, 347 S.E.2d 414 (1986) (evidence of prior sexual conduct improperly admitted in first degree sex offense prosecution when prior conduct occurred nine years before the first degree sex offense). The majority holds that it was error to permit defendant to be cross-examined regarding his convictions for assault on a female in 1957 and in 1967. Yet, because it characterizes the case against defendant as overwhelming, the majority concludes there is no reasonable possibility that these errors affected the outcome of the trial. I cannot concur with the majority’s assessment that the case against defendant is so overwhelming that there is no reasonable possibility these errors would have affected the outcome of the trial. I would hold these errors entitle defendant to a new trial.
I do not view the case against defendant as overwhelming. The evidence leaves some room for doubt as to whether defendant perpetrated the murder. As the majority says, the State relied primarily on an inculpatory statement purportedly made before trial by defendant to investigating officers; defendant’s statements and actions tending to indicate that he was familiar with the crime scene; and bloodstains on defendant’s shirt which matched the blood of the victim.
Defendant, though, offered considerable evidence in support of his innocence. Defendant testified in his own behalf arid denied his guilt of the crime. He also offered evidence tending to corroborate his testimony. One of defendant’s witnesses, Curtis Blackmon, testified that on the morning the deceased was killed *346he observed the deceased and defendant come from behind a building. Defendant walked toward the ABC store, where a car picked him up and drove away. Blackmon then saw the victim and another man, whom he had earlier observed with the victim at a club, go together behind a barn in the area. Defendant’s testimony as recited in the majority opinion, if believed, explains how the victim’s blood on his shirt and his knowledge of the crime scene could be consistent with his innocence.
In light of these conflicts in the evidence and the evidence tending to support defendant’s innocence, there is to me a reasonable possibility that had evidence of defendant’s prior crimes not been admitted there might have been a different outcome at his trial. This kind of evidence has a powerfully negative impact on the jury vis-a-vis the defendant as the jury contemplates the question of whether defendant is guilty.
Proof that a defendant has been guilty of another crime equally heinous prompts to a ready acceptance of and belief in the prosecution’s theory that he is guilty of the crime charged. Its effect is to predispose the mind of the juror to believe the prisoner guilty, and thus effectually to strip him of the presumption of innocence.
State v. Thomas, 310 N.C. 369, 372, 312 S.E.2d 458, 460 (1984), quoting State v. McClain, 240 N.C. 171, 174, 81 S.E.2d 364, 366 (1954), in turn quoting State v. Gregory, 191 S.C. 212, 220-21, 4 S.E.2d 1, 4 (1939).
Sentencing Phase
In my view it was wrong for the prosecutor to argue to the jury that it should decide the question of sentence “without sympathy.” The danger is that such an argument may violate the eighth amendment as it was interpreted in California v. Brown, 479 U.S. 538, 93 L.Ed.2d 934 (1987). Under consideration in Brown was a California penalty phase jury instruction for capital trials which admonished the jury not to be “swayed by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling.” Id. at 539, 93 L.Ed.2d at 938. In a five to four decision the United States Supreme Court found that the instruction was not objectionable insofar as it admonished the jury not to consider “mere . . . sympathy” largely because the word “mere” distinguished groundless sympathy from the sympathy arising from defendant’s *347evidence of mitigating factors. The Court concluded that reasonable jurors would construe the instruction as a directive “to ignore only the sort of sympathy that would be totally divorced from the evidence adduced during the penalty phase.” Id. at 542, 93 L.Ed.2d at 940. Justice O’Connor in her concurring opinion in Brown, 479 U.S. at 545-46, 93 L.Ed.2d at 942-43, noted:
[O]ne difficulty with attempts to remove emotion from capital sentencing through instructions such as those at issue . . . is that juries may be misled into believing that mitigating evidence about a defendant’s background or character also must be ignored. ... On remand, the California Supreme Court should determine whether the jury instructions, taken as a whole, and considered in combination with the prosecutor’s closing argument, adequately informed the jury of its responsibility to consider all of the mitigating evidence introduced by the respondent.
(Emphasis supplied.)
The teaching of Brown is that it is proper for a jury to base its sentencing decision in a capital case upon sympathy which is derived from the evidence in the case regarding defendant’s background, character or the crime itself, but it is improper for a jury to base its decision upon mere sympathy or emotion which has no grounding in the evidence. As one federal court of appeals, sitting en banc, has put it:
Mitigating evidence about a defendant’s background or character is not limited to evidence of guilt or innocence, nor does it necessarily go to the circumstances of the offense. Rather, it can include an individualized appeal for compassion, understanding, and mercy as the personality of the defendant is fleshed out and the jury is given an opportunity to understand, and to relate to, the defendant in normal human terms.
Parks v. Brown, 860 F.2d 1545, 1555 (10th Cir. 1988). Brown teaches that if what is said to a jury about avoiding considerations of sympathy could reasonably cause the jury to ignore appropriate mitigating circumstances, then the defendant’s eighth amendment right to have all such circumstances considered by the sentencer is violated. See State v. Ramseur, 106 N.J. 123, 524 A.2d 188 (1987).
While sympathy for a criminal defendant has no place in the jury’s determination of defendant’s guilt, it does have a proper *348place, if grounded in the mitigating evidence, in the jury’s determination of whether defendant shall suffer life imprisonment or die for his crime.1 In the instant case, for example, I think it would have been appropriate for the jury to base its sentencing decision in part on whatever sympathy, if any, it might have felt toward defendant arising from the evidence regarding his impaired capacity, mental retardation, abnormal parental relationship and abuse by his family during his formative years. The jury, of course, is not required to feel (and may not have felt in this case) any sympathy at all simply because this kind of evidence is introduced. But the jury ought not to be told either in closing argument by counsel or in instructions by the court that such sympathy as it might feel, grounded in this kind of evidence, can have no bearing on its sentence determination.
Before Brown, state courts were divided on the “sympathy instruction” issue, see Ramseur, 106 N.J. 123, 298, 524 A.2d 188, 277, at n.71; but the better reasoned decisions, particularly in light of Brown, held that jury instructions which precluded the jury from basing their sentencing decision on sympathy were error entitling defendant to a new sentencing hearing. Legare v. State, 250 Ga. 875, 302 S.E.2d 351 (1983); State v. Quinlivan, 81 Wash.2d 124, 499 P.2d 1268 (1972). The Georgia Supreme Court said:
Thus this jury was charged to consider in mitigation all circumstances which in fairness or mercy offer a basis for not imposing the death penalty, a charge the substance of which is constitutionally required. But the jury was also charged not to base their verdict on sympathy for the defendant. Since the evidence in mitigation might well evoke sympathy, we find these charges in irreconcilable conflict. Because the charge complained of might well confuse the jury and limit their con*349stitutionally required consideration of evidence in mitigation, we hereby disapprove it.
250 Ga. at 878, 302 S.E.2d at 354. The Washington Court said:
Contrary to this implication in the instructions, sympathy is an appropriate factor in the jury’s consideration of the penalty issue. On remand it should be made clear to the jury (1) that considerations of sympathy are to be excluded only from that portion of the verdict relating to guilt or innocence; and (2) that sympathy may properly be considered as a factor in the determination of the penalty issue.
81 Wash. 2d at 130, 499 P.2d at 1272 (citations omitted).
Since the prosecutor’s argument on this point was an isolated, single incident, not objected to by defendant, and since appropriate jury instructions were given by the trial court on the duty of the jury to consider appropriate mitigating circumstances, I agree with the majority that this error in the prosecutor’s argument does not warrant a new sentencing hearing. See Ramseur, 106 N.J. 123, 524 A.2d 188.
I do think it was reversible error for the prosecutor to be permitted to argue:
Look at Roscoe Artis over there, Ladies and Gentlemen of the Jury. You watched him throughout the trial. Is this a man of remorse? Is this a man of contrition? You have observed him on the stand. You have observed him sitting here in the courtroom, now for almost two weeks. Have you seen the first sign of contrition about him? Have you seen the first sign of remorse about him to show there’s a conscience somewhere in that head or body working on him?
I believe this argument was so egregiously wrong as to require the trial court to intervene on its own motion. As defendant correctly contends, “at the very least the prosecutor’s remarks place defendant in the incongruous position of appearing unremorseful about a crime that he swears that he did not commit.” For this reason other courts have held similar arguments to be reversible error. State v. Johnson, 293 S.C. 321, 360 S.E.2d 317 (1987); Owen v. State, 656 S.W.2d 458 (Tex. Crim. App. 1983). In Johnson the prosecutor argued during the guilt phase of a capital trial that defendant had shown no remorse for his crime. In granting a new trial, the South Carolina Supreme Court said:
*350We hold the solicitor’s improper reference to appellant’s lack of remorse was error because it was a comment upon his constitutional right to plead not guilty and put the state to its burden of proof. It would be an irreconcilable equivocation for the accused to plead not guilty, present a defense, and simultaneously express remorse for acts he denied committing .... Comments by the prosecution upon an accused’s failure to express remorse invite the jury to draw an adverse inference merely because the defendant did not appear penitent.
293 S.C. at 324, 360 S.E.2d at 319. In Owen the prosecutor argued during the punishment stage of a noncapital trial, “I would submit to you that the first step in rehabilitating somebody, the first step in granting somebody probation, is for him to at least say that he is sorry for what happened.” In reversing and remanding (presumably for a new sentencing proceeding), the Texas Court of Criminal Appeals said:
The State urges that it was not error for the prosecutor to comment on appellant’s failure to express remorse or sorrow .... Acceptance of the State’s argument would place an accused in the paradoxical position of saying I am sorry for a crime of which I am not guilty.
656 S.W.2d at 459.
In concluding that no error was committed, the majority relies on State v. Brown, 320 N.C. 179, 358 S.E.2d 1 (1987). In Brown defendant’s counsel had argued to the jury that defendant sympathized with the deceased’s widow. The State’s argument was in answer to the argument by defendant’s counsel. Further, in Brown defendant’s only argument was that lack of remorse is an irrelevant factor and to permit it to be argued as a reason for imposing the death sentence is tantamount to permitting the State to use an aggravating factor not authorized by our capital sentencing statute. The Court answered this argument by saying: “Here, however, the State made no attempt to submit this characteristic as an aggravating circumstance.” 320 N.C. at 199, 358 S.E.2d at 15. The Court did not address in Brown, nor does the majority here answer, defendant’s contention that such argument impermissibly compromises defendant’s right to plead not guilty and to stand by this plea throughout the proceedings and, thereby, denies him due process.
*351Finally, if in the sentencing phase the Court were addressing for the first time the mitigating circumstance unanimity instruction issue, I would agree with defendant’s position that these instructions violate the eighth amendment to the federal constitution as that amendment was interpreted in Mills v. Maryland, 486 U.S. 367, 100 L.Ed.2d 384 (1988), for the reasons stated in my dissenting opinions in State v. McKoy, 323 N.C. 1, 372 S.E.2d 12 (1988), cert. granted, — U.S. —, 103 L.Ed.2d 180 (1989), and State v. Allen, 323 N.C. 208, 372 S.E.2d 855 (1988). The majority’s position on this issue is, as a result of the Court’s decisions in McKoy and Allen, the law of this State to which I am now bound. For this reason I concur with the majority’s treatment of this issue.
. This Court acknowledged as much when it said in State v. Oliver, 309 N.C. 326, 360, 307 S.E.2d 304, 326 (1983):
During the guilt phase of a trial, the focus is on guilt versus innocence. Mercy is not a consideration, just as prejudice, pity for the victim, or fear may be an inappropriate basis for a jury decision as to guilt or innocence. Arguments which emphasize these factors are properly deemed prejudicial. However, during sentencing, considerations are different. The emphasis is on the circumstances of the crime and the character of the criminal.
(Citations omitted.)