concurring in part, dissenting in part.
I concur in the Court’s decision finding no prejudicial error in defendant’s trial and convictions on two counts of first-degree murder and his conviction and sentence for robbery with a dangerous weapon. I dissent only as to the capital sentencing proceeding.
Defendant contends that he is entitled to a new capital sentencing proceeding because of several errors which occurred during his capital sentencing proceeding. I find merit in one of defendant’s assignments of error and therefore vote for a new sentencing proceeding on that basis.
Defendant contends that the trial court committed reversible error in responding to a question from the sentencing jury because the court’s supplemental instruction incorrectly informed the jury that it could not answer “no” to Issue Three or Issue Four on the written Issues and Recommendation As To Punishment form unless all twelve jurors concurred in the negative answer. Defendant contends the trial court erred in its supplemental instruction to the jury. Defendant argues that this error entitles him to a new sentencing proceeding. For the reasons stated in my dissenting-in-part opinion in State v. McCarver, I agree with defendant’s argument. See State v. McCarver, 341 N.C. 364, 409-16, 462 S.E.2d 25, 51-55 (1995) (Frye, J., concurring in part and dissenting in part).
*705As the majority notes, defendant and the State both agree that the wording on the Issues and Recommendation As To Punishment form and the original jury instructions in this case were correct. Issue Three on the Issues and Recommendation As To Punishment form submitted to the jury was as follows:
Do you unanimously find beyond a reasonable doubt that the mitigating circumstance or circumstances found is, or are, insufficient to outweigh the aggravating circumstance or circumstances found?
ANSWER:_
The trial court instructed the jury:
If you unanimously find, beyond a reasonable doubt, that the mitigating circumstances axe insufficient to outweigh the aggravating circumstances found, you would answer issue number three yes. If you do not so find, or if you have a reasonable doubt as to whether or not they do, you would answer issue three no.
Issue Four on the Issues and Recommendation As To Punishment form read as follows:
Do you unanimously find beyond a reasonable doubt that the aggravating circumstance or circumstances you found is, or are, sufficiently substantial to call for the imposition of the death penalty when considered with the mitigating circumstance or circumstances found by one or more of you?
ANSWER:_
The trial court instructed the jury:
The State must also prove beyond a reasonable doubt that such aggravating circumstances are sufficiently substantial to call for the death penalty and before you may answer issue four yes, you must agree unanimously that they are.
After approximately four hours and twenty minutes of deliberations, the jury sent a question to the trial court regarding nonunanimous answers. This question, as written by the jury foreperson, read: “I put down an answer we did not unanimously agree on. Do we need another copy for the record?” The trial court addressed the jury’s question as follows:
Mr. Flood, I’m going to let y’all retire and resume your deliberations. To the extent that you need to strike through some *706answer you’ve already recorded, just mark through it and record the correct answer when you reach a point where you feel like the jurors are unanimous in their agreement on what you [sic] answer is.
With regard to the issues, issues one, two, three and four. The jury must be unanimous in their decision on what the answer to that issue is, as to one, three and four. Number two, if a single juror finds a single mitigating circumstance, then obviously you would answer that yes. So, the jury does not have to be unanimous about the second issue, but you do have to be unanimous about your answer to the other three issues.
(Emphases added.) The record discloses that the jury then changed a “no” answer to a “yes” on Issue Three of the Issues and Recommendation As To Punishment form for the murder of Leon Batten. Defendant contends that the trial court erred in giving this supplemental instruction because the instruction incorrectly informed the jury that any answer to Issue Three or Issue Four must be unanimous.
The State apparently agreed with defendant that only an affirmative answer to Issue Three or Four had to be unanimous. However, the State argued that the supplemental instruction did not change the previous instructions given the jury and did not require that the jury be unanimous in order to answer Issue Three or Issue Four in the negative. In the State’s brief, filed prior to the majority’s reinterpretation of the unanimity requirement as to capital sentencing proceedings in McCarver, the State argued:
Between the pattern jury instructions and the verdict sheet itself, the jurors could have had no confusion in their minds that only an affirmative response to Issues Three and Four had to be unanimous. The trial court’s supplemental instructions in no way contradicted or vitiated that requirement. There is no hint in the supplemental instructions that contrary to everything previously explained, the jury now had to be unanimous in its rejection of the findings required by Issues Three and Four. Although only a shorthand reference to the previous instructions, the court’s supplemental instructions were an important reminder that unanimity was required with respect to three issues. . . . Thus, the trial court did not in any way change the original charge to the jury to require that any answer, yes or no, to Issues Three and Four had to be unanimous.
*707In determining whether the supplemental instruction entitles defendant to a new capital sentencing proceeding, the controlling question is whether the trial court’s instructions, construed as a whole, would have misled a reasonable juror. State v. Conner, 335 N.C. 618, 641, 440 S.E.2d 826, 839 (1994) (holding that the trial court’s instruction that ascertainment of the truth was the highest aim of a criminal trial did not mislead the jurors on the premise of reasonable doubt) (citing State v. Garner, 330 N.C. 273, 296, 410 S.E.2d 861, 874 (1991)).
I am unable to conclude, as the State contends, that the jurors could not have understood the supplemental instruction to require that they be unanimous in order to reject the findings required by Issues Three and Four and to answer these issues in the negative. The supplemental instruction did not inform the jury that only an affirmative answer was required to be unanimous, but rather stated that the jury must be unanimous in its answer to Issues One, Three, and Four. Contrary to the State’s argument, a reasonable juror may well have been misled by this instruction to believe that the jury was required to be unanimous in order to answer Issue Three or Four in the negative. Indeed, this is exactly what a majority of this Court now says the instruction means.
In this case, the jury was given two alternative theories upon which to base its sentencing recommendations: (1) the law as stated in the court’s initial instructions and on the Issues and Recommendation As To Punishment form, and (2) the law as stated in the supplemental instruction. Where a jury is given two alternate theories upon which to base its decision, one of which is improper, the matter must be remanded for a new proceeding. State v Pakulski, 319 N.C. 562, 574, 356 S.E.2d 319, 326 (1987). This result is required because the appellate court is unable to determine upon which instructions the jury relied in reaching its decision and, therefore, must assume that the jury relied on the erroneous, improper instructions. Id. This Court is “not at liberty” to assume upon which instructions defendant’s sentencing jury relied. State v. Belton, 318 N.C. 141, 162, 347 S.E.2d 755, 768 (1986). We “cannot assume the jury adopted a theory favorable to the state; instead, [we must] construef] the ambiguity in favor of defendant.” Id.
Furthermore, based on the record before the Court, I conclude that the supplemental instruction had a probable impact on the jury’s recommendation of death and thus constituted error under the plain error rule. State v. Allen, 339 N.C. 545, 555, 453 S.E.2d 150, 155-56 *708(1995) (citing State v. Odom, 307 N.C. 655, 661, 300 S.E.2d 375, 379-80 (1983)). As noted earlier, the jury sent a note to the trial court stating that it had marked a nonunanimous answer on the Issues and Recommendation form and requesting instruction on how to correct this mistake. The record reveals that, after receiving the challenged supplemental instruction, the jury changed a “no” answer to a “yes” on Issue Three of the Issues and Recommendation As To Punishment form for the murder of Leon Batten. In addition, while there is no such extrinsic evidence to indicate the jury’s reliance on the supplemental instruction in its deliberations regarding the murder of Margaret Batten, I am unable to assume that the jury did not also rely on this instruction in answering Issues Three and Four on the Issues and Recommendation As To Punishment form for her murder. Accordingly, because the supplemental instruction had a probable impact upon the jury’s recommendations of death for the murders of Leon Batten and Margaret Batten, these death sentences should be vacated.
For the foregoing reasons, I find no error in the guilt phase of defendant’s trial. Accordingly, I would uphold defendant’s convictions on two counts of first-degree murder and his conviction and sentence for robbery with a dangerous weapon. However, because I find error in defendant’s capital sentencing proceeding, I vote to vacate defendant’s death sentences and remand to Superior Court, Johnston County, for a new capital sentencing proceeding.
JUSTICE WHICHARD joins in this concurring and dissenting opinion.