dissenting.
I join in the dissenting opinions of Justice Martin and Justice Frye. I also dissent from the majority’s position that Mills v. Maryland, 486 U.S. ---, 100 L.Ed. 2d 384 (1988), does not require us to overrule State v. Kirkley, 308 N.C. 196, 302 S.E. 2d 144 (1983), overruled in part on other grounds, State v. Shank, 322 N.C. 243, 367 S.E. 2d 639 (1988); and I write separately in support of my position that Mills does require us to overrule Kirkley and its progeny.
In Kirkley the question arose for the first time in this jurisdiction as to whether a jury in a capital sentencing proceeding must agree unanimously that a mitigating circumstance existed in order to consider that circumstance in the ultimate determination of whether the defendant should live or die. At the sentencing phase of Kirkley’s trial the unanimity issue was not addressed in the trial court’s initial jury instructions. After some deliberation the jury returned to the courtroom to ask specifically whether it must agree unanimously on each mitigating circumstance before it could continue to consider that circumstance in determining whether to impose death or life imprisonment. The trial court instructed the jury that it must unanimously agree on *50each mitigating circumstance before it could continue to consider it in the ultimate balancing process. A majority of this Court in Kirkley held, contrary to the position of both the defendant and the state, that there was no error in the trial court’s supplemental instructions on the unanimity question, saying, “Certainly consistency and fairness dictate that a jury unanimously find that a mitigating circumstance exists before it may be considered for the purpose of sentencing.” Kirkley, 308 N.C. at 218, 302 S.E. 2d at 157.
Dissenting on this issue in Kirkley, I adopted essentially what was then the state’s position. The state in its brief in Kirkley said:
Lockett v. Ohio, 438 U.S. 586 [57 L.Ed. 2d 973] (1978), holds that a statute that prevents the sentencer in all capital cases from giving independent weight to aspects in mitigation creates a risk that a death penalty will be imposed in spite of factors which call for a less severe penalty and thus is unconstitutional. It would seem manifestly improper, then, not to permit members of a jury to consider a factor in mitigation simply because all members of the jury were not satisfied with the defendant’s showing concerning a particular mitigating circumstance. It would also make any sentencing procedure unmanageable if each time a jury deadlocked on an issue a new sentencing hearing was required.
It is the State’s position that only those mitigating circumstances found unanimously to. exist should be listed on the verdict sheet recommended in State v. Rook, 304 N.C. 201, 283 S.E. 2d 732 (1981), cert. denied, 455 U.S. 1038 [72 L.Ed. 2d 155] (1982). However, no juror should he precluded from considering anything in mitigation in the ultimate balancing process even if that mitigating factor was not agreed upon unanimously. To do otherwise, the State believes, could run afoul of Lockett v. Ohio, supra.
Kirkley, 308 N.C. at 229, 302 S.E. 2d at 163 (emphasis supplied). I wrote in my Kirkley dissent:
While the state’s position on this question might pass constitutional muster, I think the better practice would be to instruct: (1) unanimity is not required in order to answer the *51question of the existence of a mitigating circumstance favorably to defendant; (2) such an issue should be answered unfavorably to defendant only if all jurors agreed to so answer it; (3) such an issue should be answered favorably to defendant if any juror would so answer it with an indication on the verdict form as to how many jurors so voted; and (4) in the final balancing process each juror would be free to consider only those mitigating circumstances which he or she were persuaded existed in the case.
Kirkley, 308 N.C. at 229-30, 302 S.E. 2d at 163. I still adhere to this position.
Despite the majority’s valiant effort to explain Mills away, the Mills holding cannot be reconciled with our Kirkley holding on the unanimity question. Instead the Mills holding squarely sustains the position both the state and I took in Kirkley on this issue. Whatever escape from the Mills holding might be provided by differences in Maryland’s and North Carolina’s capital sentencing scheme or by the posture in which the Mills case reached the Supreme Court is effectively closed, it seems to me, by the rationale of the Mills decision as expressed in the opinion itself.
The majority correctly identifies the Mills holding: Jury instructions in a capital sentencing proceeding which create “a substantial probability that reasonable jurors . . . may well have thought that they were precluded from considering any mitigating evidence unless all 12 jurors agreed on the existence of a particular such circumstance” are constitutionally infirm under the Supreme Court’s Eighth Amendment jurisprudence. Mills, 486 U.S. at ---, 100 L.Ed. 2d at 400. Our Kirkley holding is precisely to the contrary and should, therefore, yield.
The majority chooses instead to distinguish Mills on the basis of two circumstances urged upon this Court by the state as legally material differences.
The first difference suggested is that in Maryland a capital sentencing jury which finds at least one aggravating circumstance and fails to find any mitigating circumstances never engages in a balancing process and must return a sentence of death. In North Carolina even if one or more aggravating circumstances and no mitigating circumstances are found, the jury may nevertheless *52elect not to impose the death penalty on the basis that the aggravating circumstances are themselves not sufficiently substantial to call for its imposition.
Relying on this difference in the two states’ sentencing schemes as justification for continuing our Kirkley unanimity requirement ignores the rationale underlying the Mills holding as it is explained in the Mills opinion. It is true that the Supreme Court in Mills was concerned that a single holdout juror in Maryland on mitigating circumstances might force the imposition of the death penalty. The last substantive sentence of the Mills opinion is, “[t]he possibility that a single juror could block [consideration of mitigating evidence], and consequently require the jury to impose the death penalty, is one we dare not risk.” Mills, 486 U.S. at ---, 100 L.Ed. 2d at 400. Indeed, in Mills the jury found the one aggravating circumstance submitted, found none of the several mitigating circumstances submitted and on that basis returned a sentence of death.
In Maryland, however, a jury finding one or more aggravating circumstances to exist and one or more mitigating circumstances to exist would then balance the conflicting sets of circumstances by determining whether the mitigating circumstances outweigh the aggravating. In this situation the Maryland sentencing scheme is indistinguishable in principle from North Carolina’s.
In North Carolina when both mitigating and aggravating circumstances are found the jury must determine whether the mitigating circumstances are insufficient to outweigh the aggravating. If they are insufficient, then the aggravating circumstances must be considered with the mitigating circumstances and found to be sufficiently substantial to warrant imposition of the death penalty. In both balancing processes only those mitigating circumstances found to exist by all twelve jurors can be considered. Eleven jurors are prevented from considering mitigating circumstances they might wish to consider in these final balancing processes if the one remaining juror refuses to do so. This amounts to contradicting Mills by unconstitutionally precluding jurors in North Carolina from considering mitigating circumstances when they ultimately determine whether to impose the death penalty.
*53The Mills rationale as expressed in the opinion leads inescapably to the conclusion that its holding would apply to a Maryland case whether the jury found no mitigating circumstance or at least one but not all the mitigating circumstances submitted to it. Since in this situation Maryland’s capital sentencing scheme is no different from North Carolina’s, it must follow that the Mills holding applies equally to North Carolina’s capital sentencing scheme.
The Eighth Amendment jurisprudence upon which Mills rests is that in a capital case the sentencing authority may not be precluded from considering any relevant mitigating circumstance which might be proffered by the defendant as reasonably justifying a sentence other than death. Skipper v. South Carolina, 476 U.S. 1, 4, 90 L.Ed. 2d 1 (1986); Eddings v. Oklahoma, 455 U.S. 104, 110, 71 L.Ed. 2d 1 (1982); Lockett v. Ohio, 438 U.S. 586, 604, 57 L.Ed. 2d 973 (1978). This jurisprudence is summarized at the outset of the substantive discussion in Mills. Mills, 486 U.S. at ---, 100 L.Ed. 2d at 393-94. Later in its opinion the Supreme Court posits a Maryland capital sentencing process under which the jury actually reaches the balancing stage, saying:
Ordinarily, a Maryland jury reaches the balancing stage of the deliberation process any time it unanimously finds at least one mitigating circumstance, or, under the interpretation adopted by the Court of Appeals in this case, any time the jury does not unanimously reject all mitigating circumstances. Had the jurors that sentenced petitioner reached Section III, they would have found that even if they had read the verdict form as the Court of Appeals suggests they could have, and marked “yes” or “no” only on the basis of unanimity as to either, they were not free at this point to consider all relevant evidence in mitigation as they balanced aggravating and mitigating circumstances. Section III instructed the jury to weigh only those mitigating circumstances marked “yes” in Section II. Any mitigating circumstance not so marked, even if not unanimously rejected, could not be considered by any juror. A jury following the instructions set out in the verdict form could be “precluded from considering, as a mitigating factor, [an] aspect of a defendant’s character or record [or] a circumstance] of the offense that the defendant proffer[ed] as a basis for a sentence less than death,” *54Skipper v. South Carolina, 476 U.S. at 4, 90 L.Ed. 2d 1, 106 S.Ct. 1669, if even a single juror adhered to the view that such a factor should not be so considered.
Mills, 486 U.S. at ---, 100 L.Ed. 2d at 397 (footnote omitted). Footnote 14 presses the point further:
For example, some jurors in this case might have found that petitioner’s age, 20, constituted a mitigating factor, i.e., youthfulness, under § 413(g)(5). Indeed, in his sentencing report the trial judge noted: “There was evidence from which the jury could have found the existence of Mitigating Circumstance No. 5 (youthful age).” App. 108. Other jurors, on the other hand, might have accepted the prosecutor’s argument that petitioner was “not youthful in terms of the criminal justice system,” id., at 79, because of his history of criminal activity. Under such circumstances, the lack of unanimity would have prevented the jury from marking that answer “yes.” Regardless of whether the answer was marked “no” or left blank, the instructions in Section III would prevent those jurors who thought petitioner’s youthfulness was relevant to the ultimate sentencing decision from giving that mitigating circumstance any weight.
Mills, 486 U.S. at ---, 100 L.Ed. 2d at 397-98 n.14.
The majority next attempts to distinguish Mills on the basis of the posture in which that case reached the Supreme Court. The majority notes that the Maryland Court of Appeals in its Mills opinion and the State of Maryland before the United States Supreme Court both conceded that mitigating evidence continued to be legally relevant even if the jury does not unanimously find it to have mitigating value; but in North Carolina such evidence ceases to be legally relevant if rejected by even one juror.
This argument stands Mills and the Eighth Amendment jurisprudence upon which it rests on their respective heads. The jurisprudence so far developed by the Supreme Court in a series of cases to which I have already referred is that the Eighth and Fourteenth Amendments preclude a state from creating barriers to the consideration by a capital sentencer of all evidence which may reasonably be said to have mitigating value. It makes no dif*55ference what form these barriers take. The Supreme Court said unequivocally in Mills:
Under our decisions, it is not relevant whether the barrier to the sentencer’s consideration of all mitigating evidence is interposed by statute, Lockett v. Ohio, supra; Hitchcock v. Dugger, 481 U.S. ---, 95 L.Ed. 2d 347, 107 S.Ct. 1821 (1987); by the sentencing court, Eddings v. Oklahoma, supra; or by an evidentiary ruling, Skipper v. South Carolina, supra. The same must be true with respect to a single juror’s holdout vote against finding the presence of a mitigating circumstance. Whatever the cause, . . . the conclusion would necessarily be the same: “Because the [sentencer’s] failure to consider all of the mitigating evidence risks erroneous imposition of the death sentence, in plain violation of Lockett, it is our duty to remand this case for resentencing.” Eddings v. Oklahoma, 455 U.S. at 117, n*, 71 L.Ed. 2d 1, 102 S.Ct. 869 (O’Connor, J., concurring).
Mills, 486 U.S. at ---, 100 L.Ed. 2d at 394 (emphasis supplied).
“[I]t is universally recognized that evidence, to be relevant to an inquiry, need not conclusively prove the ultimate fact in issue, but only have ‘any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.’ ” New Jersey v. T.L.O., 469 U.S. 325, 345, 83 L.Ed. 2d 720, 737 (1985), quoting Fed. R. Evid. 401. As noted by Thayer, “The law furnishes no test of relevancy.” E. Thayer, A Preliminary Treatise on Evidence at the Common f/aw 265 (1898). The concept of logical relevancy employed in Rule 401 must be kept separate from issues of sufficiency of evidence for any purpose such as to satisfy a burden of production. M. Graham, Handbook of Federal Evidence § 401.1 (2d ed. 1986). This concept of relevancy is the same in the context of mitigating evidence in a capital sentencing proceeding as it is in other contexts. Relevant mitigating evidence is evidence which tends logically to prove or disprove some fact or circumstance which a fact-finder could reasonably deem to have mitigating value. Whether the fact-finder accepts or rejects the evidence has no bearing on the evidence’s relevancy. The relevance exists even if the fact-finder fails to be persuaded by that evidence. It is not necessary that the item of evidence alone *56convinces the trier of fact or be sufficient to convince the trier of fact of the truth of the proposition for which it is offered. Id. at § 401.1 n.12.
To say, as the majority here does, that jury unanimity on a mitigating factor is necessary to make that factor legally relevant in the final balancing process seems not only to be a misuse of the concept of relevancy but also a classical case of circular reasoning with regard to the constitutional question presented. When the Supreme Court speaks in Mills of the constitutional necessity for permitting the sentencer in a capital case to “consider” all mitigating evidence in determining whether to impose or not to impose the death penalty, it clearly has reference to that stage of the process where the final sentencing decision is being made. It is at that stage where under Mills and its predecessors any juror must not be precluded from considering evidence that juror might reasonably believe to have mitigating value. It is not enough that the juror be permitted to “consider” the mitigating evidence at the point when the jury is trying to determine whether any particular mitigating circumstances exist. There is no question that all jurors were permitted to consider such evidence at that stage of the process in Mills.
Rather, the question presented in Mills is whether at the ultimate decision-making stage of a capital sentencing proceeding it is constitutionally permissible to preclude any juror from considering a mitigating circumstance that juror believes to exist because not all jurors agree on its existence. Mills answers that question “no.” It also makes clear that the question must be answered “no” notwithstanding any procedural devices a state may employ to preclude the sentencer’s consideration of mitigating factors at the ultimate decision-making stage. This means to me that North Carolina cannot preclude jurors from considering mitigating evidence at that stage by labeling the evidence legally irrelevant.
The majority relies in part on Franklin v. Lynaugh, --- U.S. ---, 101 L.Ed. 2d 155 (1988), for the proposition that it is permissible for states to structure, direct and focus the jury’s consideration of mitigating evidence. Guiding and structuring the jury’s consideration of mitigating evidence is one thing; precluding the jury’s consideration of such evidence at the final decision-making *57stage is quite another. Lynaugh permits the former; Mills prohibits the latter. Indeed, the Supreme Court concluded the instructions in Lynaugh were not constitutionally infirm “[b]ecause we do not believe that the jury instructions or the Texas Special Issues precluded jury consideration of any relevant mitigating circumstances in this case, or otherwise unconstitutionally limited the jury’s discretion . . . .” Lynaugh, --- U.S. at ---, 101 L.Ed. 2d at 171.
Because the majority’s reliance on the Supreme Court’s denial of certiorari in two North Carolina cases in which the Mills issue was raised is sparing and properly carries with it the recognition that such denials mean nothing with regard to the Court’s views on the merits of the case, I see little need to respond to this aspect of the majority’s opinion. Suffice it to say that, according to the authorities cited by the majority, the Supreme Court’s position on the issue of the unanimity requirement vis-a-vis mitigating circumstances in a capital sentencing procedure should be determined entirely from its holding and its analysis in Mills and not at all from its denials of applications for writs of certiorari in cases in which this issue might have been raised.
Justice Frye joins in this dissenting opinion.