The Court today hands down three decisions involving the interpretation of our death penalty statutes, this case, State v. Cherry, 298 N.C. 86, 257 S.E. 2d 551 (1979) and State v. Johnson, 298 N.C. 47, 257 S.E. 2d 597 (1979). In light of my late participation in the consideration of these cases — a participation requested by the other members of the Court — , the gravity of the issues addressed, and my concern lest these decisions be interpreted too broadly, I think it worthwhile to add this concurrence.
After carefully reading the records and briefs submitted by counsel, and listening to the oral arguments on tape, I conclude once again that in the world of criminal justice, there is no more delicate nor difficult issue than that of capital punishment. Sincere and intelligent people disagree strongly on the question of the death penalty. All three branches of both state and federal government have struggled with it for centuries. The United States Supreme Court has at times equivocated about the issue, creating uncertainty and confusion in the lower courts. Our legislature, in response to its constituency and numerous court decisions, has amended our capital punishment law on several occasions. Prosecutors, defense attorneys, and trial judges wrestle daily with the resulting uncertainty each revision brings. It is unfortunate, albeit inevitable, that the course charted by legislative and judicial action is an uncertain one on an issue which touches the deepest human emotions. The beneficial result of this uncertainty, however, is that in deciding whether the State shall take a human life, we proceed with the greatest possible care.
Of this we can be certain: North Carolina law presently provides for the death penalty in certain aggravated cases of first degree murder. The United States Supreme Court has ruled that *37capital punishment statutes similar to ours pass constitutional muster. See Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed. 2d 859 (1976); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed. 2d 913 (1976). The three decisions filed today are our first interpretations of the most recently enacted capital punishment statutes in North Carolina. G.S. 15A-2000, et seq. My concern is that the collective result of these decisions may be seen as a step by this Court to indirectly abolish capital punishment in North Carolina. I do not consider that to be our purpose. We should not. attempt to usurp the legislative process. I write this footnote to the excellent opinions of the majority primarily to highlight the narrow results reached by the three opinions filed today. Also, I think an overview of the three opinions will provide a helpful guide to the lower courts.
I. State v. Goodman
A.
In Goodman, defendant was found guilty of first degree murder by premeditation and deliberation and by the felony-murder rule. He was also found guilty of armed robbery and kidnapping. At the sentencing stage, the jury found beyond a reasonable doubt these statutory aggravating circumstances:
(1) Defendant had been previously convicted of a felony involving the use or threat of violence to the person. G.S. 15A-2000(e)(3).
(2) The capital felony was committed for the purpose of avoiding or preventing a lawful arrest. G.S. 15A-2000(e)(4).
(3) The capital felony was committed while the defendant was engaged in the commission of or attempt to commit a robbery or kidnapping. G.S. 15A-2000(e)(5).
(4) The capital felony was committed to disrupt or hinder the lawful exercise of the enforcement of laws (arrest of defendant for the robbery or kidnapping offenses). G.S. 15A-2000(e)(7).
(5) The capital felony was especially heinous, atrocious, or cruel. G.S. 15A-2000(e)(9).
With respect to mitigating factors, the jury did not find:
*38(1) The defendant was an accomplice in or accessory to the capital felony committed by another person and his participation was relatively minor. G.S. 15A-2000(f)(4).
(2) The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirement of law was impaired. G.S. 15A-2000(f)(6).
The jury did deem:
(3) Other circumstances arising from the evidence had mitigating value. G.S. 15A-2000(f)(9).
The jury then found beyond a reasonable doubt that the mitigating circumstances were insufficient to outweigh the aggravating circumstances and that the latter were sufficiently substantial to call for the imposition of the death penalty.
B.
As I read it, the majority opinion in Goodman presents one narrow holding: A new sentencing hearing must be granted when the trial court improperly submits an aggravating circumstance to the jury in a sentencing hearing conducted pursuant to G.S. 15A-2000, and the jury finds that circumstance present to the prejudice of the defendant.
Specifically, the majority holds that, under the facts of this case, the aggravating circumstances contemplated by G.S. 15A-2000(e)(7) and (e)(4) should not both be submitted to the jury. I would simply add that I can think of few situations in which the jury would not find, pursuant to G.S. 15A-2000(e)(7), that the “capital felony was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of law” if that circumstance were submitted to them. In order to prevent an automatic accumulation of aggravating circumstances, which our legislature obviously did not intend, I should think that trial judges would rarely submit this circumstance to the jury.
As I understand it, the majority today also attempts to establish the following guidelines:
(1) Based on the facts of the particular case, prejudicial error in submitting an aggravating circumstance to the jury occurs when (a) the submission is erroneous, (b) the jury finds that cir*39cumstance to exist, and (c) there is a reasonable possibility the erroneously submitted circumstance might have contributed to the decision.
(2) The aggravating circumstance provided by G.S. 15A-2000(e)(3), which provides for aggravation where “defendant had been previously convicted of a felony involving . . . violence to the person” contemplates that (a) defendant shall have been convicted, not merely charged or indicted, of a felony as a result of conduct occurring prior to the events out of which the capital felony charge arose and (b) the felony for which defendant was convicted involved the “use or threat of violence to the person,” i.e., conviction for a crime against property may not be submitted under this subsection.
(3) The aggravating circumstance contemplated by G.S. 15A-2000(e)(5), which provides that “the capital felony was committed ... in the commission of, or an attempt to commit, . . . any robbery, rape, arson, burglary, kidnapping, or aircraft piracy or the unlawful throwing ... of a destructive device or bomb,” may be appropriately submitted to the jury only when the defendant is convicted of first degree murder upon the theory of premeditation and deliberation. Put another way, if the defendant is convicted only on the basis of the felony-murder rule, this circumstance may not be submitted to the jury as an aggravating circumstance.
(4) In order to avoid the aggravating circumstance contemplated by G.S. 15A-2000(e)(9), which provides for a crime “especially heinous, atrocious, or cruel,” from becoming a “catchall” division which could always be employed in cases where there is no evidence of other aggravating circumstances, the trial judge must explain that the expression “heinous, atrocious, or cruel” anticipates an especially brutal murder where the brutality exceeds that normally present in any killing. Such brutality shall be limited to acts done to the victim during the commission of the capital felony itself. Here, the majority expressly approved the instructions of the trial judge with respect to this aggravating circumstance and quoted the Florida court’s definition as the “conscienceless or pitiless crime which is unnecessarily torturous to the victim.” State v. Dixon, 283 So. 2d 1, 9 (Fla., 1973). See also Proffitt v. Florida, supra at 255-56.
*40(5) The aggravating circumstance provided by G.S. 15A-2000 (e)(4), a capital felony committed to avoid a lawful arrest, contemplates more than merely killing the victim. Before this aggravating circumstance may be submitted to the jury, the evidence must establish that at least one of the motivating factors leading to the killing was defendant’s desire to avoid apprehension for his crime. Put another way, the mere fact of the victim’s death will not alone invoke this factor. There must be some evidence of a manifest intent to avoid arrest and detection.
(6) The legislature did not intend, in providing the mitigating circumstance contemplated by G.S. 15A-2000(f)(6), where defendant’s capacity “to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired,” that intoxication, however slight, should be a mitigating circumstance. When the defendant contends that his faculties are impaired by intoxication, the intoxication must be to such a degree that it affects defendant’s ability to understand and control his actions.
(7) Under G.S. 15A-2000(f)(9), which provides for “[a]ny other circumstance arising from the evidence which the jury deems to have mitigating value,” there can be no restriction on the jury’s consideration of any factor relevant to the circumstances of the crime or the character of the defendant. However, in instructing the jury, the trial judge “is not required to sift through the evidence and search out every possible circumstance which the jury might find to have mitigating value.” State v. Goodman, supra at 34, 257 S.E. 2d 569, 590 (1979).
(8) The trial court should not instruct the jury that the jury might recommend a sentence of life imprisonment even though it finds aggravating circumstances to outweigh those in mitigation. To allow such discretion would be a return to the unfettered days prior to Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed. 2d 346 (1972).
(9) The review function given to this Court by G.S. 15A-2000 (d)(2) is to be employed only in those cases where both phases of the trial of a defendant have been found to be without error.
While the majority has addressed the guidelines enumerated above, we are remanding for a new sentencing hearing here *41because of one error by the trial judge with respect to the submission of one of the aggravating circumstances found present by the jury. The Court found that error was not harmless. With this portion of the Court’s holding, I do not fully agree. Practically, I consider the error a harmless one. The jury found four other aggravating circumstances present including a finding that this capital felony was especially heinous, atrocious, or cruel. It found only one mitigating circumstance. I would ordinarily in a situation like this probably find that the assigned error was harmless beyond a reasonable doubt. However, in these first cases interpreting our death statutes and in more than an abundance of caution, I join the majority on the basis of the facts presented by this case.
II. State v. Cherry
A.
In Cherry, defendant was found guilty of first degree murder under the felony-murder rule. The evidence established that he was in the process of robbing a store when the murder was committed. At the sentencing stage, the jury found these statutory aggravating circumstances:
(1) Defendant had been previously convicted of a felony involving the use or threat of violence to the person. G.S. 15A-2000(e)(3).
(2) The capital felony was committed while the defendant was engaged in the commission of robbery. G.S. 15A-2000 (e)(5).
(3) The murder was committed for pecuniary gain. G.S. 15A-2000(e)(6).
The jury answered negatively the following questions posed with respect to aggravating circumstances:
(1) Was the murder especially heinous, atrocious, or cruel? G.S. 15A-2000(e)(9).
(2) Did the defendant knowingly create a great risk of death to more than one person by means of a weapon or device which would normally be hazardous to the lives of more than one person? G.S. 15A-2000(e)(10).
*42The jury found none of the four submitted mitigating circumstances:
(1) The capital felony was committed while the defendant was under the influence of mental or emotional disturbance. G.S. 15A-2000(f)(2).
(2) The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired. G.S. 15A-2000(f)(6).
(3) The age of the defendant at the time of the crime. G.S. 15A-2000(f)(7).
(4) Any other circumstance arising from the evidence which the jury deems to have mitigating value. G.S. 15A-2000(f)(9).
Again, the holding in Cherry is narrow. Specifically, the majority holds that a new sentencing hearing is necessary when the trial court erroneously submits to the jury at the sentencing phase of the trial the aggravating circumstance concerning the underlying felony pursuant to G.S. 15A-2000(e)(5), when that underlying felony has already been used to establish the offense as a capital felony at the guilt phase of trial. The rule would not apply, of course, as in Goodman, when the defendant is convicted of first degree murder as a result of premeditation and deliberation as well as the felony-murder rule. This formalizes the guideline presented in Goodman discussed supra.
With respect to whether the assigned error was harmless, I join the majority for the limited reasons stated in the discussion of Goodman, supra. However, and also for the same reasons stated in Goodman, I am unwilling to say that such error will always constitute prejudicial error. Here, the jury found two other aggravating circumstances and no mitigating circumstances.
I join with the majority in finding that the underlying felony should not be considered as an aggravating circumstance at the sentencing stage for the felony murder. However, I am concerned that this holding might be construed too broadly. We are not holding that the jury is to ignore the crime for which the defendant was convicted. Obviously, the underlying felony may be, and should be, considered by the jury in the sentencing phase. G.S. *4315A-2000(a)(3) provides in part that it is unnecessary to resubmit evidence at the sentencing stage which was presented during the guilt determination phase unless a new jury is impaneled, “but all such evidence is competent for the jury’s consideration in passing on punishment." (Emphasis added.) It is clear, therefore, that the jury may consider the underlying robbery or other felony in the sentencing phase. What our holding here prohibits is simply that the underlying felony cannot be submitted to the jury as an aggravating circumstance. This is so for the reasons clearly explained in the majority opinion: It would be patently unfair for a defendant convicted of first degree murder by virtue of the felony-murder rule to start with one aggravating circumstance against him while a defendant convicted on the basis of premeditation and deliberation would start with no aggravating circumstances against him. Again, however, we ought to note that the legislature has attached special significance to murder committed in the course of commission of robbery and other felonies and the jury is surely allowed to consider that fact in making their sentencing recommendation.
III. State v. Johnson
A.
In Johnson, defendant pleaded guilty to murder in the first degree which was committed in the course of a rape. The majority opinion notes that there was ample evidence of premeditation and deliberation. The jury found, beyond a reasonable doubt, the following aggravating circumstances:
(1) The capital felony was committed while the defendant was engaged in the commission of, or attempt to commit, rape. G.S. 15A-2000(e)(5).
(2) The capital felony was especially heinous, atrocious, or cruel. G.S. 15A-2000(e)(9).
The jury then found that the following mitigating circumstances existed:
(1) The defendant had no significant history of prior criminal activity. G.S. 15A-2000(f)(l).
*44(2) The capital felony was committed while the defendant was under the influence of mental or emotional disturbance. G.S. 15A-2000(f)(2).
The jury did not find the following mitigating circumstances which were submitted to it:
(1) The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired. G.S. 15A-2000(f)(6).
(2) Any other circumstances arising from the evidence which the jury deems to have mitigating value. G.S. 15A-2000(f) (9).
The jury then found that the mitigating circumstances were insufficient to outweigh the aggravating circumstances and, beyond a reasonable doubt, that the aggravating circumstances were sufficiently substantial to call for imposition of the death penalty.
B.
The majority opinion establishes the following:
(1) In some cases in which the defendant relies on the mitigating circumstance contemplated by G.S. 15A-2000(f)(6), the trial judge must include in his instructions to the jury on this statute the following:
a. An explanation of the difference between defendant’s capacity to know right from wrong and the impairment of his capacity to appreciate the criminality of his conduct. That is, while defendant might have known that his conduct was wrong, he might not have been able to appreciate, i.e., to fully comprehend, or be fully sensible of its wrongfulness. Moreover, while his capacity to so appreciate the wrongfulness of his conduct might not have been totally obliterated, it might have been impaired, i.e., lessened or diminished.
b. An explanation that the jury should find this mitigating factor if it believed that defendant’s capacity to conform his conduct to the law, i.e., his capacity to refrain from illegal conduct, was impaired. This does not mean that defendant must wholly lack all capacity to conform. It means only that such capacity as *45he might otherwise have had in the absence of his mental defect is lessened or diminished because of the defect.
I do not believe that these instructions are required in those instances in which the defendant attempts to invoke the mitigating circumstance provided by G.S. 15A-2000(f)(6) on the basis of defendant’s intoxication. As I understand it, this holding is applicable only to mental impairments and diseases such as schizophrenia, conditions not readily understood by the average layman.
(2) If a defendant makes a timely request for a listing in writing of any mitigating circumstances pursuant to G.S. 15A-2000(f)(9) which are supported by the evidence and if these circumstances are such that the jury could reasonably deem them to have mitigating value, the trial judge must put such circumstances on the written list submitted to the jury. It will not be prejudicial error for the judge to fail to do so, however, if the defendant fails to request the judge to submit them.
(3) The burden of persuading the jury on the issue of the existence of any mitigating circumstance is upon the defendant and the standard of proof shall be by a preponderance of the evidence. Where, however, all of the evidence in the case, if believed, tends to show that a particular mitigating circumstance does exist, the defendant is entitled to a peremptory instruction on that circumstance. In order to be entitled to such an instruction, however, defendant must timely request it.
(4) The State and the defendant may not enter into a plea bargain whereby the defendant may plead guilty to first degree murder in return for a life sentence and thus avoid a potential death sentence imposed by a jury convened under G.S. 15A-2000.
(5) If the defendant requests it, the trial court, in addition to other approved instructions with respect to the aggravating circumstance contemplated by G.S. 15A-2000(f)(9), should instruct the jury that not every murder is necessarily “especially heinous, atrocious, or cruel” in the sense these words are used in the statute.
In summary, the majority opinion remands for a new sentencing hearing because of the trial court’s failure to fully explain one of the mitigating circumstances enumerated in G.S. 15A-2000(f). I *46can think of no more difficult instruction required of a trial judge than explaining a statute dealing with the human mind. In the absence of any guidance, perhaps this able trial judge felt more confident to rely on the legislative language. I can appreciate the problem with which he was confronted. However, it is abundantly clear that our legislature has mandated that the state of the mind of the defendant shall be given serious consideration by the jury in determining whether the death penalty should be imposed. It therefore becomes incumbent upon this Court to devise for the trial judges’ guidance an understandable explanation for jurors of the legislative intent. Justice Exum has presented an excellent analysis of this subsection in the majority opinion and it should be a workable guide for our trial courts in the future.
Some may justifiably consider impaired capacity to be the most important subsection in our death penalty statutes. I frankly doubt that our society could uphold the concept of capital punishment without it. While North Carolina chooses not to consider mere mental impairment with respect to determining a defendant’s guilt, in a punishment so final, we must ensure that the jury give proper consideration to defendant’s mental condition as presented by the evidence. The Court’s holding today in Johnson goes a long way toward guaranteeing that consideration.
Conclusion
Each decision handed down today is, as has been repeatedly stated, based on its own particular facts. One decision is based on erroneous trial court instructions with respect to a mitigating circumstance which was properly submitted and two are based on the improper submission of an aggravating circumstance. These are narrow holdings. However, when viewed collectively, as I have attempted to do here, we find numerous guidelines, particularly in Goodman, which range far beyond the narrow results reached. While I formally concur with the narrow holding in Goodman and generally support the further enumerated guidelines, I must caution that I believe some of the latter are not necessary to the decision in this case. I therefore view today’s interpretations of G.S. 15A-2000 which go beyond the narrow holdings required as tentative formats only, subject to closer investigation in the appropriate factual circumstance.