dissenting.
I dissent from the majority’s holding that defendant is entitled to a new sentencing hearing in the murder case for error in failing to submit the mitigating circumstance of “no significant *148history of prior criminal activity.” I am of the opinion, first, that the trial judge did not err in refusing to submit that mitigating circumstance and, second, that even if the judge erred in refusing to submit it, such error was harmless.
I
First, I believe that the trial judge acted properly in refusing to submit the mitigating circumstance in question. At a capital sentencing hearing, it is the duty of the defendant to present evidence of any circumstances in mitigation of sentence. Our analysis in State v. Hutchins is particularly instructive for the case at bar. There, we stated as follows:
The State does not have the burden of proof that in a given capital case no mitigating circumstances exist. It is the responsibility of the defendant to go forward with evidence that tends to show the existence of a given mitigating circumstance and to prove its existence to the satisfaction of the jury.
Hutchins, 303 N.C. 321, 355-56, 279 S.E. 2d 788, 809 (1981) (citation omitted), cert. denied, 464 U.S. 1065, 79 L.Ed. 2d 207 (1984).
The trial court must include on the written list of statutory mitigating circumstances submitted to the jury any enumerated circumstance if it is supported by the evidence. The trial court is not required to instruct upon a statutory mitigating circumstance unless defendant, who has the burden of persuasion, brings forward sufficient evidence of the existence of the specified circumstance. State v. Hutchins, 303 N.C. 321, 355-56, 279 S.E. 2d 788, 809. See also State v. Taylor, 304 N.C. 249, 277, 283 S.E. 2d 761, 779 (1981), cert. denied, 463 U.S. 1213, 77 L.Ed. 2d 1398 (1983). As we said in Taylor, “If the defendant does not offer any evidence to show the existence of a mitigating circumstance, it is clear a fortiori that he does not carry this burden, and thus is not entitled to an instruction on a mitigating circumstance.” Taylor, 304 N.C. at 277, 283 S.E. 2d at 779.
In the case at bar, defendant Wilson simply presented no evidence that he had no significant history of prior criminal activity. Instead, he relied entirely on the evidence the State had offered to prove the statutory aggravating factor that defendant had been convicted of a felony involving the threat of violence. *149Not only did the defendant in this case not present any personal testimony that he had no other convictions, not one of the witnesses for the defendant or for the State testified that defendant had no other convictions or that defendant had not been involved in any other criminal activities. There was never any attempt by the defendant or the State to disclose the defendant’s entire criminal record or lack thereof. There was no evidence offered as to the number or type of defendant’s convictions, except for the single conviction of second-degree kidnapping.
The evidence concerning this single conviction of second-degree kidnapping came into the case when the State established one of the aggravating factors which was submitted to and found by the jury, to wit, that defendant had previously been convicted of a felony involving the threat of violence to the person. In order to prove this aggravating factor, the State simply put on one conviction — that of the second-degree kidnapping. The defendant, apparently in order to forestall the State from presenting additional evidence concerning the nature of this kidnapping, stipulated that the prior kidnapping was a felony involving the threat of violence to the person. The stipulation was to the effect that the defendant had been so convicted, that there was a threat of violence employed, and that defendant had received a sentence of three to five years. There was no stipulation that defendant had only one prior felony conviction and no evidence offered by either the defendant or the State to that effect.
In addition, there was evidence in the record of the defendant’s theft of property from a farm and of defendant’s concealing drugs in a shed. Indeed, when the defendant requested the instruction concerning his lack of any significant history of prior criminal activity, the State argued to the trial judge that there had been no attempt by either party to establish any record of the existence or nonexistence of the defendant’s criminal record. The State thus had no opportunity to develop defendant’s record concerning other felonies, misdemeanors, or criminal activity. There is simply no evidence in the record before us from either defendant or the State that defendant’s conviction of second-degree kidnapping is the only felony conviction on his record, or that he has been convicted of no other crimes of any degree of seriousness, or that defendant was guilty of no other criminal activity. The only evidence of other “criminal activity” was that de*150fendant was deeply involved with his brother and others in the theft of major farm equipment from the Coppridge Farm and that defendant stored drugs in a shed.
That defendant made no attempt to introduce evidence that he had not been convicted of any other crime or committed any other criminal activity is not at all surprising. By not attempting to establish this mitigating circumstance, the defendant effectively prohibited the State from establishing defendant’s history of convictions and criminal activities. Had the defendant offered evidence of the requested mitigating circumstance, the State could, of course, have offered evidence in rebuttal. In the case at bar, it was particularly important to the defendant to foreclose the prosecution from presenting any available evidence which might have established his involvement in what was obviously an ongoing theft ring.
I find it exceedingly strange that the very evidence which was adequate to support the aggravating factor that defendant had been convicted of a felony involving a threat of violence, which was submitted and found by the jury, is now characterized by the majority as possibly not a “significant” history. The seriousness of the felony of which defendant had previously been convicted, which was stipulated by him to have involved the threat of violence to the person, was such that it was submitted, as required by statute, as an aggravating factor which could be used to support the imposition of the death penalty. No rational jury could reasonably infer from the commission of this serious felony of violence, so recent in time to this murder, that defendant did not have a significant history of prior criminal activity. I am satisfied to a certainty that the court did not err in failing to submit the requested mitigating circumstance of “no significant history of prior criminal activity.”
II
Second, even if I agreed with the majority that the trial judge erred in failing to submit to the jury the mitigating circumstance in question, I believe that the error was harmless. I do not now address the question of whether the majority has employed the proper test for prejudice. Here, the error was harmless whether it is analyzed under N.C.G.S. § 15A-1443(a) or (6).
*151The majority’s conclusion that this “error” cannot be said to be harmless is especially surprising in view of the facts in this case. The defendant kidnapped the victim, accused him of “snitching” on the defendant, took him to a remote area, choked him, threatened him with a knife for a long period of time, struck him in the face, tied a rope around his neck, hit him in the head with a tree limb, stabbed him as he pled with him, beat him, garroted him, stabbed him numerous times, covered his body, and bragged that “the son of a bitch won’t talk any more. I cut his throat.” The victim here was strangled and stabbed to death. His body had thirty-nine stab wounds, thirty-one of which were in the back. There were additionally three defensive-type incised wounds on his arm and hand. In addition to abrasions from the rope on his neck, there were stab wounds on the left and right sides of his neck, as well as in the back of his neck. There were lacerations on his chin, right forehead, right ear, and hand. Both sides of his lower jaw were fractured, as was a finger on his right hand. There were blunt force injuries and contusions, abrasions, and bruises to his head, face, neck, arms, and legs, and there was hemorrhaging in the brain.
The jury found no mitigating circumstances although six of them, including the statutory mitigating circumstance of defendant’s age at the time of the crime, were submitted for the jury’s consideration. Among those submitted to the jury and which the jury refused to find were that “[p]rior to June 18, 1980, Michael Ray Wilson had no prior history of assaultive behavior” and “[a]ny other circumstance or circumstances arising from the evidence which you the jury deem to have mitigating value.” On the other hand, four aggravating factors were submitted to the jury, and the jury found all four of them to exist. These included that the defendant had been previously convicted of a felony involving the threat of violence to the person and that the defendant committed the murder while engaged in the commission of a kidnapping. The other two aggravating factors found by the jury were that the murder was committed to disrupt or hinder the enforcement of the laws and that the murder was especially heinous, atrocious, or cruel. The jury further unanimously found beyond a reasonable doubt that the aggravating factors were sufficiently substantial to call for the imposition of the death penalty. It is particularly significant that the jury was instructed that it could *152evaluate any other circumstance or circumstances arising from the evidence which it deemed to have mitigating value. It found none.
It simply defies reason that the jury, having found the aggravating factor that defendant had committed a prior felony involving the use of violence (for which defendant was sentenced to three to five years in prison), would then turn around and find, upon the very same evidence, that he had no significant history of prior criminal activity.
The amount of psychological and physical torture present in this case, the atrocious nature of the killing, and the jury’s finding of the aggravating factors and its failure to find any of the mitigating circumstances submitted convince me that even if it was error to fail to submit the requested factor of no significant history of criminal activity, and it was not, it was harmless beyond a reasonable doubt.
I vote no error in the sentencing phase as well as the guilt-innocence phase.