concurring in part and dissenting in part.
I concur in the result reached by the majority on the guilt phase of this case. Given defendant’s age, mental retardation, the compelling mitigating circumstances found by the jury and that juries in this state have consistently returned life sentences under similar circumstances, I believe that the death penalty here is excessive and disproportionate. I respectfully dissent from the majority opinion insofar as it sustains the imposition of the sentence of death and vote to remand the case for the imposition of a sentence of life imprisonment.
I recognize that defendant has been convicted of at least actively assisting in the commission of first-degree murder and that the crime was committed in an especially brutal manner against an especially vulnerable victim by defendant and three accomplices.1 The crime cries out for punishment. If the defendant were a mature adult with full mental faculties rendering him capable of fully appreciating the wrongfulness of his act, and if the mitigating circumstances found were less compelling, I would conclude, as does the majority, that the death penalty is not disproportionate.
The question is not whether this mentally retarded defendant, nineteen years old at the time of the crime, will be punished; the question as always in these cases is which punishment will he receive — death or life imprisonment. Under the power given us by statute to determine whether a death sentence is excessive *246or disproportionate, I conclude the statute requires that this defendant be sentenced to life imprisonment.
I first note my disagreement with the majority’s position that the jury might not have rejected the premeditation and deliberation theory of first-degree murder. I believe the record reflects that the jury rejected this theory and convicted defendant only on the felony murder theory.
The verdict form, which is partially reproduced in the majority opinion, appears in the record as follows:
STATE OF. NORTH CAROLINA )
VS )
HENRY LEE MCCOLLUM ) VERDICT
defendant )
We, the jury, return the unanimous verdict as follows:
1.GUILTY of FIRST DEGREE MURDER
Answer: yes
IF YOU ANSWER “YES,” IS IT:
A. On the basis of malice, premeditation and deliberation?
ANSWER: _
B. Under the first degree felony murder rule?
ANSWER: yes
OR
2. GUILTY of SECOND DEGREE MURDER
Answer: _
OR
3. NOT GUILTY
ANSWER: _
This the IB day of Nov, 1991.
si Carl M. Moses
FOREPERSON OF THE JURY
*247The form shows that the jury rejected verdicts of second-degree murder and not guilty by leaving the answer lines to these verdicts blank and returned a verdict of guilty of first-degree murder by writing “yes” in the answer line to this verdict. Just as clearly it seems to me, the jury rejected the premeditation and deliberation theory by leaving the answer line to sub-verdict “A” blank and convicted defendant solely on the theory of felony murder by writing “yes” on the answer line to sub-verdict “B.”
It is true, as the majority states, that juries do not convict or acquit of theories; they convict and acquit of crimes, as we said in State v. Thomas, 325 N.C. 583, 386 S.E.2d 555 (1989). Here, for example, defendant has not been acquitted of first-degree murder; he has been convicted of it. Juries, however, do frequently reject some theories of guilt and accept others; and often it is necessary for purposes of appellate review to know which theories were rejected and which were accepted. The verdict form here was designed for that purpose, and the trial court instructed the jury that it might convict defendant of first-degree murder on either or both theories submitted. While the trial court also instructed the jury to write answers, either “yes” or “no,” in all the blanks, I am satisfied, after considering the jury’s responses to other answer lines on the verdict form, that the jury’s leaving an answer line blank on this form is the equivalent of its writing “no” on that line.
I have no disagreement, however,- with the result reached by the majority on the question of whether the evidence supports the aggravating circumstance that the murder was committed to avoid arrest. That the jury rejected the theory of premeditation and deliberation does not mean it could not have legitimately found the aggravating circumstance. The findings are not, as defendant seems to argue, mutually exclusive. A defendant can commit a murder for the purpose of avoiding arrest and still not premeditate and deliberate the killing.
N.C.G.S. § 15A-2000(d)(2) mandates that we consider whether “the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.” N.C.G.S. § 15A-2000(d)(2). This requires a comparison of “the case at bar with other cases in the pool which are roughly similar with regard to the crime and the defendant, such as, for example, the manner in which the crime was committed and the *248defendant’s character, background, and physical and mental condition.” State v. Lawson, 310 N.C. 632, 648, 314 S.E.2d 493, 503 (1984), cert. denied, 471 U.S. 1120, 86 L. Ed. 2d 267 (1985) (emphasis added). A comparison of this case to those in other capitally tried cases in our proportionality pool in which both crimes and defendants are similar to the crime and defendant in the instant case compels the conclusion that the sentence of death here is excessive and disproportionate.
Defendant was convicted of felony murder based on the underlying felony of rape. The evidence tended to show the murderous act itself was committed by someone other than defendant, although defendant actively assisted by holding the victim and was clearly guilty as an aider and abettor. At the time of the crime defendant was nineteen years old. He suffered from mental retardation and functioned at a mental age of eight to ten years. Defendant’s intelligence quotient (IQ), which was tested on two different occasions, was scored at 61 and 69. Achievement test results showed defendant functioned at a third grade level with the reading comprehension level of a second grader.
At sentencing, the jury found two aggravating circumstances — that the murder was committed to avoid arrest and that it was especially heinous, atrocious or cruel. It also found seven mitigating circumstances — no significant history of prior criminal activity, commitment of the felony murder under the influence of mental or emotional disturbance, that defendant was mentally retarded, that he was.easily influenced by others, that he had difficulty thinking clearly under stress, that he cooperated with police, and that he had adapted to his prison environment. Notwithstanding, the jury recommended a sentence of death.
Upon reviewing prior felony murder convictions based on acts similar in nature to the instant case and perpetrated by defendants having similar characteristics to those of defendant McCollum, I am compelled to draw the conclusion that a sentence of death under these circumstances is disproportionate.
Of all capital cases involving felony murder convictions with an underlying felony of a sex offense, only five have involved defendants who were less than or equal to twenty years of age. All five of these cases resulted in a jury recommendation of life imprisonment. State v. Jenkins, 311 N.C. 194, 317 S.E.2d 345 (1984) (seventeen-year-old defendant); State v. Fincher, 309 N.C. 1, 305 *249S.E.2d 685 (1983) (eighteen-year-old-defendant); State v. Hunt, 324 N.C. 343, 378 S.E.2d 754 (1989) (twenty-year-old defendant); State v. Forney, 310 N.C. 126, 310 S.E.2d 20 (1984) (nineteen-year-old defendant).
Defendant was also found to be mentally and emotionally disturbed at the time of the offense. In sexual offense felony murder cases where evidence of mental and emotional disturbance on the part of the defendant has been present, juries have repeatedly recommended life imprisonment even where the defendant was the actual perpetrator of an especially "heinous, atrocious or cruel killing. State v. Thomas, 332 N.C. 544, 423 S.E.2d 75 (1992) (mentally or emotionally disturbed defendant sentenced to life imprisonment for felony murder of victim even though jury found killing to be especially heinous, atrocious or cruel); State v. McKinnon, 328 N.C. 668, 403 S.E.2d 474 (1991) (jury recommended life sentence for emotionally and mentally disturbed defendant who raped and murdered victim under especially heinous, atrocious or cruel circumstances); State v. Flack, 312 N.C. 448, 322 S.E.2d 758 (1984) (emotionally, mentally disturbed defendant sentenced to life imprisonment for the especially heinous and atrocious strangulation, beating and sexual assault of eighty-eight-year-old woman); State v. Forney, 310 N.C. 126, 310 S.E.2d 20 (1984) (codefendant of Flack also found to be emotionally, mentally disturbed and sentenced to life imprisonment).
While here the jury did not find that defendant’s capacity to appreciate the wrongness of his act and to conform his conduct to the requirements of law was impaired, it did find, along with six other mitigating circumstances, that defendant was mentally retarded. Significantly, where a jury of this state has been charged in the past with the task of capitally sentencing a defendant whom it found to be mentally retarded, it has recommended life imprisonment. State v. Fincher, 309 N.C. 1, 305 S.E.2d 685 (1984). In Fincher the defendant was convicted of first-degree murder on the theory of felony murder based on the underlying felony of rape. Unlike defendant McCollum, defendant Fincher actually committed the murderous act. Id. at 13, 305 S.E.2d at 693. Similar to defendant McCollum, however, Fincher was a mentally retarded seventeen-year-old, suffering from a schizophreniform disorder, with an IQ measured at 50 and 65. Id. at 7, 305 S.E.2d at 690. As in this case, the jury found as an aggravating circumstance that the murder was heinous, atrocious or cruel and as a mitigating circumstance *250that the murder was committed while the defendant was mentally or emotionally disturbed. The jury returned a sentence of life imprisonment.
Of fifteen cases involving a capitally tried defendant in which there was evidence that the defendant was mentally retarded, I have found only one, State v. Spruill, 320 N.C. 688, 360 S.E.2d 667 (1987), cert. denied, 486 U.S. 1061, 100 L. Ed. 2d 934 (1988), where this Court sustained a sentence of death. Significantly, in Spruill the jury rejected this evidence and refused to find the mental retardation mitigating circumstance submitted to it. Indeed, the jury failed to find any mitigating circumstances at all.
In its proportionality review, the majority has relied on two cases, State v. Zuniga, 320 N.C. 233, 357 S.E.2d 898, cert. denied, 484 U.S. 959, 98 L. Ed. 2d 384 (1987), and State v. McDougall, 308 N.C. 1, 301 S.E.2d 308, cert. denied, 464 U.S. 865, 78 L. Ed. 2d 173 (1983), both of which I find quite unlike the case at bar. In Zuniga the defendant was sentenced to death for the stabbing and killing of a seven-year-old girl during the commission of the felony of first-degree rape. Unlike the present case, defendant Zuniga was convicted of first-degree murder on the theory of premeditation and deliberation. At the time of the offense, Zuniga was twenty-seven years old; and there was no evidence of, nor did the jury find the existence of, any mental or emotional disturbance or mental impairment on the part of the defendant. In McDougall, the defendant, who was twenty-five, was convicted of first-degree felony murder and sentenced to death even though the jury found the defendant was under the influence of a mental or emotional disturbance at the time the offense was committed. However, unlike the instant case, there were two underlying felonies — kidnapping and rape — instead of the one felony of sex offense. After voluntarily injecting cocaine, the defendant in McDougall tricked two women into letting him into their home before he “commenced a campaign of terror against [them], cutting, stabbing and slashing them with a butcher knife.” 308 N.C. at 37, 301 S.E.2d at 319. The McDougall jury found the existence of three aggravating circumstances, one of which was the defendant’s prior conviction for the felony of rape. The jury in the present case found as a mitigating circumstance that defendant had no prior history of criminal activity.
We said in State v. Lawson, 310 N.C. 632, 648, 314 S.E.2d 493, 503 (1984), that if, after making the comparisons with similar *251cases, considering both the crimes committed and the defendants who committed them,
we find that juries have consistently been returning death sentences in the similar cases,, then we will have a strong basis for concluding that a death sentence in the case under review is not excessive or disproportionate. On the other hand if we find that juries have consistently been returning life sentences in the similar cases, we will have a strong basis for concluding that a death sentence in the case under review is excessive or disproportionate.
In cases like the one before us, considering both the crime and the defendant, juries have consistently been returning verdicts of life imprisonment. I conclude, therefore, that the sentence of death against this defendant is disproportionate under N.C.G.S. § 15A-2000(d)(2).
I also believe that a strong argument can be made that the imposition of the death penalty upon a defendant whom the jury finds to be mentally retarded constitutes cruel or unusual punishment violative of Article I, Section 27, of the North Carolina Constitution, which provides, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishments inflicted.”
“The law’s humanity would seem to dictate that rarely if ever should death be the appropriate punishment for a defendant who kills under the influence of a mental or emotional disturbance and whose capacity to appreciate the wrongness of his act and to conform his conduct to the requirements of law is impaired. Punished he should be. But execution of a defendant whose crime is the product of a mentally and emotionally defective personality and who suffers from an incapacity to control his conduct is excessively vindictive.” State v. Rook, 304 N.C. 201, 246-47, 283 S.E.2d 732, 759 (1981), cert. denied, 455 U.S. 1038, 72 L. Ed. 2d 155 (1982) (Exum, J., now C.J., dissenting) (emphasis supplied).
Recently the United States Supreme Court visited the question whether execution of the mentally retarded violated the United States Constitution’s prohibition in the Eighth Amendment of “cruel and unusual punishment”; by a five to four majority, the Court concluded that it did not. Penry v. Lynaugh, 492 U.S. 302, 106 L. Ed. 2d 256 (1989). A great deal that can be said on this issue *252was said in the opinions delivered in that case. The Amicus Curiae Brief filed in Penry by the American Association on Mental Retardation, The American Psychological Association, the Association for Retarded Citizens of the United States, and other organizations with expertise on the subject is compelling. So is information contained in Conley, Luckasson and Bouthilet, The Criminal Justice System and Mental Retardation (Paul H. Brooks 1992), containing a forward by Dick Thornburgh written when he was Attorney General of the United States, published since, and critical of, the decision in Penry.
The four dissenters in Penry make a powerful case for the proposition that execution of the mentally retarded violates the Eighth and Fourteenth Amendments. We, of course, are bound by the majority’s decision in Penry that it does not insofar as the federal document is concerned. We are able to decide, however, that such executions violate our state’s constitutional prohibition against cruel or unusual punishments.
Defendant, however, did not raise this argument at trial nor on appeal; and it has not been briefed or argued in this case. The question, therefore, is not properly before us; and until it has been briefed and argued, I am unwilling to address it definitively.
Justice Frye joins in this concurring and dissenting opinion.. Only one of defendant’s accomplices, Leon Brown, was tried for the offenses, the other two apparently being juveniles. Leon Brown was convicted only of rape; he was not convicted of murder. State v. Brown, 83 CRS 15822, 15827 (Superior Court, Bladen County).