concurring in part and dissenting in part.
I agree with the majority’s ruling in this case, that there was no error in the guilt phase of defendant’s trial, and I therefore concur in that part of the majority’s opinion.
I dissent from that portion of the majority’s opinion which finds error in the Sentencing phase of defendant’s trial and orders a new sentencing proceeding. I find that any McKoy error which occurred in the sentencing phase of defendant’s trial was harmless beyond a reasonable doubt.
The requirement that the jury find unanimously the statutory mitigating circumstance set forth in N.C.G.S. § 15A-2000(f)(6), “[t]he capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was impaired,” was harmless beyond a reasonable doubt because no evidence of this circumstance was presented. Terry Warner, the psychologist, testified that defendant’s reasoning ability was impaired because of his low intelligence and that defendant’s use of drugs and alcohol, in his opinion, “would compromise the abilities that he has.” The witness’ testimony went only to the mitigating circumstance that was found: “That the defendant is of subnormal intelligence with a history of the use of drugs which causes him to act impulsively and without good judgment.” The witness did not testify that substance abuse impaired his capacity to appreciate that his conduct was criminal or that defendant’s ability to conform his conduct to the law was impaired by either the low intelligence or substance abuse. The testimony does not establish impaired capacity at the time of the testing or at the time of the murder that would mitigate the offense. There was absolutely no evidence *36that defendant was using drugs or alcohol at the time of the murder. Indeed, defendant denied the offense altogether. Mr. Warner was asked only what effect alcohol or drugs “would be" on defendant. Thus, this case is distinguishable from State v. Sanderson, 327 N.C. 397, 394 S.E.2d 803 (1990), and other such cases, where there was testimony that defendant was using drugs at the time of the offense, and the Court found that there was some evidence of impaired capacity which could have been found by at least one juror. Such is not the case here.
Likewise, I find harmless beyond a reasonable doubt the McKoy error requiring the jury to unanimously find the nonstatutory mitigating circumstances. First, conceding that defendant was entitled to have the nonstatutory mitigating circumstance that he was a good worker submitted for the jury’s consideration without the unanimity charge because there was substantial evidence to support it, in view of the horrible killing of the seventy-eight-year-old physically disabled victim, who lived alone, by the infliction of seventeen stab wounds, I easily conclude that no reasonable juror would have found this circumstance sufficiently mitigating to cause him to change his vote from death to life imprisonment.
While the majority does not discuss the matter, I conclude that the trial court erred in submitting the nonstatutory mitigating circumstance that defendant “was a good family man” or, if it was error, that it was harmless beyond a reasonable doubt because the record is absolutely devoid of any evidence to support it. The record merely shows that defendant lived with his family, though he was twenty-eight years of age.
Likewise, though the majority does not discuss it, I conclude that the trial judge erroneously submitted the nonstatutory mitigating circumstance that defendant expressed remorse over killing the victim. The record reflects only that he made a statement to a cellmate that he did not intend to kill the victim, and even this evidence was refuted by the medical evidence that the defendant stabbed the victim seventeen times.
Having further concluded that the death sentence was not imposed as a result of any passion or prejudice and that the death penalty was proportionate in this case, I vote to find no error not only in the guilt phase, but in the sentencing phase of defendant’s trial as well, and to uphold the death penalty imposed by the trial court.
*37Justices MITCHELL and Martin join in this concurring and dissenting opinion.