concurring in part and dissenting in part.
I concur in the result reached by the majority on the guilt phase of this case. Being of the opinion, however, that it was prejudicial error for the trial court to permit the jury to return its recommendation for a sentence of death without specifying which of the mitigating circumstances it found to exist, I vote to remand the case for a new sentencing hearing. This practice violates G.S. 15A-2000 and seriously prejudices the defendant not only at trial but also on appeal when this Court is required to determine whether his capital sentence “was imposed under the influence of passion, prejudice, or any other arbitrary factor,” or whether “the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.” G.S. 15A-2000(d)(2).
Properly read G.S. 15A-2000 requires the jury to indicate its findings as to each mitigating circumstance submitted to it. Although the statute does not expressly and specifically so require, when the statute is read contextually, it becomes clear that the legislature intended that the jury specify both the aggravating and mitigating circumstances which it finds to exist in a capital trial. It is our duty to construe G.S. 15A-2000 so that the result comports with the overall design and purpose of the statutory scheme even though the construction may go somewhat beyond the express language of the statute itself. See, e.g., State v. Silhan, 302 N.C. 223, 275 S.E. 2d 450 (1981); State v. Cherry, 298 N.C. 86, 257 S.E. 2d 551 (1979), cert. denied, 446 U.S. 941 (1980); State v. Johnson, 298 N.C. 47, 257 S.E. 2d 597 (1979); State v. Goodman, 298 N.C. 1, 257 S.E. 2d 569 (1979). We said in State v. Johnson, supra, 298 N.C. at 56, 257 S.E. 2d at 606, with reference to G.S. 15A-2000:
“We must construe important provisions of the statute. The first maxim of statutory construction is to ascertain the intent of the legislature. To do this this Court should consider the statute as a whole, the spirit of the statute, the evils it was designed to remedy, and what the statute seeks to accomplish.” (Emphasis original.)
Section (b) of the statute requires, first, that in all capital cases:
*238“[T]he judge shall include in his instructions to the jury that it must consider any aggravating circumstance or circumstances or mitigating circumstance or circumstances from the lists provided in subsections (e) and (f) which may be supported by the evidence, and shall furnish to the jury a written list of issues relating to such aggravating or mitigating circumstance or circumstances.
“After hearing the evidence, argument of counsel, and instructions of the court, the jury shall deliberate and render a sentence recommendation to the court, based upon the following matters:
(1) Whether any sufficient aggravating circumstance or circumstances as enumerated in subsection (e) exist;
(2) Whether any sufficient mitigating circumstance or circumstances as enumerated in subsection (f), which outweigh the aggravating circumstance or circumstances found, exist; and
(3) Based on these considerations, whether the defendant should be sentenced to death or to imprisonment in the State’s prison for life.” (Emphasis supplied.)
Section (c) provides:
“(c) Findings in Support of Sentence of Death. —When the jury recommends a sentence of death, the foreman of the jury shall sign a writing on behalf of the jury which writing shall show:
(1) The statutory aggravating circumstance or circumstances which the jury finds beyond a reasonable doubt; and
(2) That the statutory aggravating circumstance or circumstances found by the jury are sufficiently substantial to call for the imposition of the death penalty; and,
(3) That the mitigating circumstance or circumstances are insufficient to outweigh the aggravating circumstance or circumstances found.” (Emphasis supplied.) *239Section (e) then lists the available aggravating circumstances, and section (f) suggests a number of mitigating circumstances which the jury may consider but to which it is not limited because of the open-ended language found in section (f)(9).
The statute thus requires that “a written list of issues relating to” the aggravating and mitigating circumstances be submitted to the jury. The jury, before it may recommend a sentence of death, must specify in writing which aggravating circumstances it finds beyond a reasonable doubt; that these circumstances are sufficiently substantial to call for the imposition of the death penalty, and that the mitigating circumstances are insufficient to outweigh the aggravating circumstances. Thus, as we noted in State v. Johnson, supra, 298 N.C. 47, 257 S.E. 2d 597, the statutory process is, as it must be, “directed toward the jury’s having a full understanding of both the relevant aggravating and mitigating factors and the necessity of balancing them against each other in determining whether to impose the death penalty.” Id. at 63, 257 S.E. 2d at 610.
Since the mitigating circumstances are required to be submitted, like the aggravating circumstances, to the jury in the form of “written . . . issues” and the jury is required to find whether “sufficient” aggravating and “sufficient” mitigating circumstances exist and since the jury is further required to show in writing which of the aggravating circumstances it finds, the conclusion is inescapable that the legislature intended the jury should also be required to show in writing which of the mitigating circumstances it finds to exist. What other purpose would there be for submitting the mitigating circumstances to the jury on a written list? To require both the mitigating and aggravating circumstances to be submitted in the form of “written . . . issues” clearly imports a legislative intent that the jury consider and answer them as such. The very term “Issues” as applied to a trial generally refers to factual or legal questions which must he answered in order to resolve the dispute. If the issues are factual they are resolved by the trier of fact. “An ‘issue’ is a disputed point or question . . . upon which [parties to an action] are desirous of obtaining either decision of court on question of law or of court or jury on question of fact.” Black’s Law Dictionary (5th ed. 1979).
To require the jury to indicate in writing the mitigating circumstances it finds to exist has been the practice followed by our *240trial judges in every case tried under the new death penalty statute which has been determined by this Court and in which the jury recommended death except for the instant case; State v. Taylor, decided this day and in which I also dissent in part; and State v. Hamlette, 302 N.C. 490, 276 S.E. 2d 388 (1981).1 The cases are: State v. Irwin, No. 26, Fall Term 1981, presently pending in the Court; State v. Hutchins, 303 N.C. 321, 279 S.E. 2d 788 (1981); State v. Martin, 303 N.C. 246, 278 S.E. 2d 214 (1981); State v. Silhan, supra, 302 N.C. 223, 275 S.E. 2d 450; State v. Oliver and Moore, 302 N.C. 28, 274 S.E. 2d 183 (1981); State v. Small, 301 N.C. 407, 272 S.E. 2d 128 (1980); State v. McDowell, 301 N.C. 279, 271 S.E. 2d 286 (1980), cert. denied, --- U.S. ---, 101 S.Ct. 1731, 68 L.Ed. 2d 220 (1981); State v. Detter, 298 N.C. 604, 260 S.E. 2d 567 (1979); State v. Johnson, 298 N.C. 355, 259 S.E. 2d 752 (1979); State v. Barfield, 298 N.C. 306, 259 S.E. 2d 510 (1979), cert. denied, 448 U.S. 907 (1980); State v. Spaulding, 298 N.C. 149, 257 S.E. 2d 391 (1979); State v. Cherry, supra, 298 N.C. 86, 257 S.E. 2d 551, cert. denied, 446 U.S. 941; State v. Johnson, supra, 298 N.C. 47, 257 S.E. 2d 597; State v. Goodman, supra, 298 N.C. 1, 257 S.E. 2d 569; State v. Jones, 296 N.C. 495, 251 S.E. 2d 425 (1979). Presumably our trial judges in these cases were following the statutory requirements as they understood them to be. This is a strong indicator that the statute should be interpreted to accord with the practice which has evolved pursuant to its provisions particularly when such an interpretation is the more reasonable one when the statute is considered as a whole.
Furthermore this Court has determined that the defendant must prove each mitigating circumstance which he proffers by the greater weight of the evidence and that upon his timely request he is entitled to a peremptory instruction in his favor where “all of the evidence in the case, if believed, tends to show that a particular mitigating circumstance does exist.” State v. Johnson, supra, 298 N.C. at 76, 257 S.E. 2d at 618. Surely this holding contemplates a statute which requires not only that a written list of mitigating circumstances be submitted, but that the jury indicate on the list its findings as to each such circumstance submitted.
*241Requiring the jury to specify in writing the aggravating, but not the mitigating, circumstances which it finds to exist not only violates G.S. 15A-2000, but it also prejudices the defendant at the sentencing hearing. It encourages the jury to think that the mitigating circumstances are less worthy of consideration than the aggravating circumstances. Under this practice the jury is not required, as it should be, to focus its full attention on each submitted mitigating circumstance individually in order to determine whether it exists. Yet this kind of determination is necessarily prerequisite to the jury’s determination whether the mitigating circumstances “are insufficient to outweigh the aggravating circumstances.” The danger in not requiring the jury to specify its findings regarding the individual mitigating circumstances is that the jury will not, because it thinks it need not, decide which mitigating circumstances it believes do in fact exist, but will simply determine amorphously that whatever the mitigating circumstances may be, they do not outweigh the aggravating circumstances. This kind of determination fails to give a defendant the benefit of a particularized consideration of each circumstance which might militate against putting him to death.
Such a determination probably violates a capital defendant’s constitutional right to “individualized consideration” as that concept was expounded in Lockett v. Ohio, 438 U.S. 586, 604-05 (1978) (Burger, C.J.; plurality opinion):
“[T]he Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death. . . . The need for treating each defendant in a capital case with that degree of respect due the uniqueness of the individual is far more important than in non-capital cases. . . . The nonavailability of corrective or modifying mechanisms with respect to an executed capital sentence underscores the need for individualized consideration as a constitutional requirement in imposing the death sentence.
“There is no perfect procedure for deciding in which cases governmental authority should be used to impose *242death. But a statute that prevents the sentencer in all capital cases from giving independent mitigating weight to aspects of the defendant’s character and record and to circumstances of the offense proffered in mitigation creates the risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty. When the choice is between life and death, that risk is unacceptable and incompatible with the commands of the Eighth and Fourteenth Amendments.” (Emphasis original.)
Under our statutory scheme permitting the jury to return a recommendation for death without requiring it to specify which mitigating circumstances it finds to exist so dilutes the jury’s constitutional duty to consider, in the words of Lockett, “any aspect of a defendant’s character or record and any of the circumstances of the offense that defendant proffers as a basis for a sentence less than death” and to give them “independent mitigating weight” that it skirts dangerously close to violating these constitutional requirements.
The majority relies on Gregg v. Georgia, 428 U.S. 153 (1976) to sustain its interpretation of our statute against constitutional attack. I believe the reliance is misplaced. Our statutory scheme for imposing the death penalty and that of Georgia’s are quite different. Our statute not only suggests a list of mitigating circumstances which might be proffered by the defendant but it requires that the list be submitted to the jury in writing along with a written list of the aggravating circumstances. The Georgia statute permits the jury to consider any mitigating factor but none of these factors are enumerated, specified, or otherwise suggested to the jury. Ga. Code Ann. § 27-2534.1. Under our statute, as I have noted, the jury is required to balance carefully various enumerated mitigating circumstances with various enumerated aggravating circumstances submitted in the form of written issues in determining whether to recommend a sentence of death or life imprisonment. Under Georgia law the jury “is not required to find any mitigating circumstance in order to make a recommendation of mercy that is binding on the trial court . . . but it must find a statutory aggravating circumstance before recommending a sentence of death.” Gregg v. Georgia, supra, 428 at 197. (Emphasis original.) Indeed, in Georgia, the jury may return a death sentence upon finding one or more aggravating circumstances, no *243matter how it regards the mitigating circumstances.2 In contrast, under our statute the jury may return a death sentence recommendation only if it finds: (1) the existence of one or more aggravating circumstances; (2) that the aggravating circumstance(s) found by it are sufficiently substantial to call for the imposition of the death penalty; and (3) that the mitigating circumstances are insufficient to outweigh the aggravating circumstances. The clear import of our statute is that a jury, upon finding the requisite existence of aggravating circumstances and their sufficient substan-tiality, may not recommend life imprisonment unless it further finds that the mitigating circumstances are sufficient to outweigh the aggravating circumstances.
Under our statute the jury’s sentence determination is far more carefully channeled. The entire thrust of our statute is directed toward insuring that the jury fully understand both the aggravating and mitigating circumstances so that it may carefully balance them against each other in arriving at its sentence determination. State v. Johnson, supra, 298 N.C. 47, 257 S.E. 2d 597. Thus the existence or non-existence of mitigating circumstances looms far more crucial to the jury’s ultimate determination under our statute than it does under Georgia’s. For this reason the majority’s conclusion that our statute does not require the jury to answer specifically the written issues relating to mitigating factors but only those relating to aggravating factors may well render the statute violative of the constitutionally required individualized consideration in a capital case even though Georgia’s procedure was sustained in Gregg. For the jury here is given both lists of aggravating and mitigating issues, in writing, told to answer the issues relating to aggravating factors in writing, and then told to make its life or death decision on the basis of what is essentially a careful balancing of the aggravating against the mitigating circumstances. Yet at the same time the jury is told that it really should not answer in writing the individual issues relating to mitigating circumstances. This procedure is bound to diminish in the jury’s mind the importance of its determination with regard to each mitigating factor submitted, a determination which, under our statute, is crucial to its ultimate decision. It *244makes it less likely, and I believe unconstitutionally so, that the jury will find the mitigating circumstances sufficient to outweigh the aggravating. Indeed, it makes it less likely that the ultimate sentence determination will be based on that kind of individualized determination that our statute contemplates and the constitution requires.
Furthermore, not requiring the jury to specify which mitigating circumstances it finds to exist prejudices the defendant’s ability to obtain that review of his sentence required by G.S. 15A-2000(d)(2), sometimes referred to as our proportionality review, unless the Court is willing to sustain the sentence upon the assumption that the jury answered all mitigating circumstances3 submitted to it in favor of the defendant. The majority here is apparently willing to sustain this sentence even after making that assumption. I could not vote to sustain the death sentence if the jury had answered all mitigating circumstances in defendant’s favor. If this had happened, I, for reasons hereinafter stated, would vote to remand for the imposition of a sentence of life imprisonment, although I, like the majority, am repulsed by the gruesome circumstances of defendant’s crimes. Since I cannot on this record know how the jury answered these issues, I must, for this additional reason, vote to remand for a new sentencing hearing at which the jury would be directed to give its answers to these issues.
The statute 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.” G.S. 15A-2000(d)(2). (Emphasis supplied.) Obviously the statute contemplates that we compare not only the circumstances under which the crime was committed but that we also look to the nature, character, and background of the defendant committing it. I have already noted the stress which the United States Supreme Court in Lockett v. Ohio, supra, 438 U.S. 586, placed on the “need for treating each defendant in a capital case with that degree of respect due the uniqueness of the individual” and “the need for individualized consideration as a constitutional requirement in imposing the death sentence.” Generally the mitigating circumstances proffered by a defendant in a capital case will per*245tain to his individual character, personal history, mental and emotional stability, and background; while the aggravating circumstances generally relate to the circumstances of the crime itself. We cannot, therefore, determine whether the sentence of death in any particular case is excessive or disproportionate when compared with similar cases “considering both the crime and the defendant” unless we know both the aggravating and the mitigating circumstances found by the jury to exist. This is particularly true with two of the mitigating circumstances submitted in this case, ie., that the murder was committed while the defendant “was under the influence of mental or emotional disturbance” and that the capacity of the defendant “to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was impaired.” G.S. 15A-2000(f)(2) and (6).
An examination of capital cases so far determined by this Court reveal that jury determinations with regard to the existence of these two mitigating circumstances is perhaps the most crucial factor in the jury’s ultimate recommendation. In every case in which the jury rejected both of these circumstances, the jury has returned a death sentence recommendation. Detter, Bar-field, Martin, Cherry and Irvin. In the five cases in which the jury considered only one of these mitigating circumstances and rejected it, the jury recommended death in three, Jones, Goodman, and Small, and life in two. Crews and Atkinson.4, On the other hand, of the eleven cases in which either or both of these mitigating circumstances were submitted and answered affirmatively by the jury, Turpin, Johnson I, Spaulding, Poole, Johnson II, Taylor, Ferdinando, Myers, King, Adcox, and Hutchins,5 the jury returned a recommendation for life imprisonment in all but *246four cases, Johnson I, Spaulding, Johnson II and Hutchins. Of these four, however, Johnson I and Johnson II were remanded for a new sentencing hearing because of improper instructions on the diminished capacity circumstance. At the new sentencing hearings in both cases, at which presumably appropriate instructions were given, the juries returned a life imprisonment recommendation. Furthermore Spaulding was remanded for a new trial for errors committed in the guilt phase. At Spaulding’s retrial life imprisonment was imposed because the jury was unable to reach a unanimous verdict. Consequently of the eleven cases in which either or both of these mitigating circumstances were found in defendant’s favor, only one of the defendants, Hutchins, received a death sentence which was ultimately affirmed by this Court. In Silhan’s first trial, State v. Silhan, supra, 302 N.C. 223, 275 S.E. 2d 450, neither of these mitigating circumstances was submitted to the jury and the jury recommended the death sentence. On retrial, however, both circumstances were submitted. The jury rejected the impaired capacity circumstance and found the emotional disturbance circumstance to exist. The jury then being unable to agree, the judge as required by G.S. 15A-2000(b) imposed a sentence of life imprisonment.6
This analysis demonstrates that juries in North Carolina almost never recommend the death penalty after they determine that at the time of the crime the defendant was either under the influence of mental or emotional disturbance or that his capacity to appreciate the criminality of his conduct and to conform his conduct to law was impaired. Likewise this Court should be slow to affirm a death sentence in which these mitigating circumstances are present. 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 con*247trol his conduct is excessively vindictive. It marks society itself with the same kind of unnecessary barbarity which it claims to be punishing in the defendant. The death penalty, if we are to have it at all, should be reserved for first degree murders which are the products of the meanness of mature, calculating, fully responsible adults.
John Rook, if the jury answered all the mitigating circumstances in his favor, would not be that kind of defendant. His evidence presented at the sentencing phase included the testimony of family members and two psychiatrists. Rook, age 21 at the time of the offense, was the product of an abnormally deprived, if not depraved, childhood. Both parents were alcoholics. His father began to give him alcoholic beverages at the early age of three years because he enjoyed watching him become intoxicated. His father regularly and without provocation required Rook to undress and submit to severe beatings. Early in his life Rook began to use alcohol on a regular basis and later became a regular user of a multitude of various illegal drugs such as cocaine, marijuana, and speed. Rook spent much of his early teenage years in juvenile detention facilities, but his problems stemmed from his addiction to alcohol and drugs. When he was not under the influence of these substances he was a loving and affectionate husband and brother. On the date of the offense in question Rook was under the influence of both alcohol and drugs. According to the psychiatrists who testified he was under the influence of a mental and emotional disturbance at the time of the crime and was unable to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. He expressed remorse for his actions to both psychiatrists who examined him and he ultimately cooperated fully with investigators after acknowledging to them that he needed help.
This evidence formed the basis for most of the mitigating circumstances submitted to the jury for its determination. If we assume that the jury answered these mitigating circumstances in defendant’s favor, it accepted this evidence as true.
Only three aggravating circumstances were submitted to the jury. Other than the circumstance that the murder was especially heinous, the only other aggravating circumstances were the rape and the kidnapping of the murder victim herself. But if the jury *248answered the mitigating circumstances in defendant’s favor, these crimes, like the murder, were the products of defendant’s mental and emotional disturbance and his diminished capacity to appreciate their criminality and to conform his conduct to the requirements of law. If defendant’s evidence is believed the whole awful incident is, really, attributable to the tragic personality defects traceable to a depraved childhood of a young, immature, mental defective spurred on by the influence of alcohol and drugs.
Of the capital cases so far determined by this Court, then, Rook would be the only defendant other than Spaulding and Hutchins for whom the jury after answering upon proper instructions the emotional disturbance or diminished capacity issue in defendant’s favor also recommended death. As earlier noted, on Spaulding’s second trial the jury could not agree on the sentence, and a life sentence was ultimately imposed. Yet Rook, from the standpoint of his background, is far more deserving of mercy than Spaulding or Hutchins. Spaulding was a mature adult who at the time of the murder in question was already serving a life sentence for two prior murders. Records and Briefs, Spring Term 1979, No. 10, p. 127. Hutchins was also a mature adult.7 He was convicted by the jury of murdering one after the other three law enforcement officers, all of whom were attempting to apprehend him. The killings were apparently the product of Hutchins’ blind rage. Although he contended he suffered from paranoid psychosis, only one mitigating circumstance was answered by the jury in Hutchins’ favor, ie., that he was under the influence of a “mental or emotional disturbance.” The jury rejected Hutchins’ proffered circumstance that his capacity to appreciate the criminality of his act or to conform his conduct to law was diminished. It also concluded that there were no other unspecified mitigating circumstances in his case.
If we assume the jury believed Rook’s evidence in mitigation and answered all mitigating circumstances in his favor, he would be the first defendant finally sentenced to die who at the time of the murder was under the influence of a mental and emotional *249disturbance and whose capacity to appreciate the criminality of his conduct or to conform his conduct to law was impaired. Considering this, and considering the many other mitigating circumstances submitted in his favor, e.g., his age, depraved childhood, subnormal intelligence, alcoholism and drug addiction, cooperation with investigators, and the fact that this awful incident is totally out of character for him when he is not under the influence of drugs and alcohol, I would have to conclude that the sentence of death recommended by the jury was disproportionate to the penalty imposed in similar cases considering both the crime and the defendant. My vote would then be to remand the case for the imposition of a sentence of life imprisonment.
Since I cannot know how much of defendant’s evidence in support of his proffered mitigating circumstances the jury accepted in view of the jury’s failure to answer these issues, I vote to remand the case for a new sentencing hearing at which these issues would be answered.
. In Hamlette, however, no specific mitigating factors were proffered. Only the catchall section (f)(9) was used and the jury answered it “none.”
. Ga. Code Ann. § 27-2534.1. The judge or jury is required simply “to consider any mitigating circumstances.” Id.
. These circumstances are listed in the majority opinion at n. 1.
. All the listed cases are cited previously except State v. Atkinson, 298 N.C. 673, 259 S.E. 2d 858 (1979); State v. Crews, 296 N.C. 607, 252 S.E. 2d 745 (1979).
. All the listed cases are cited previously except State v. Adcox, 303 N.C. 133, 277 S.E. 2d 398 (1981); State v. King, 301 N.C. 186, 270 S.E. 2d 98 (1980); State v. Myers, 299 N.C. 671, 263 S.E. 2d 768 (1980); State v. Ferdinando, 298 N.C. 737, 260 S.E. 2d 423 (1979); State v. Taylor, 298 N.C. 405, 259 S.E. 2d 502 (1979); State v. Poole, 298 N.C. 254, 258 S.E. 2d 339 (1979); and State v. Crews, 296 N.C. 607, 252 S.E. 2d 745 (1979) (also reviewing defendant Turpin’s trial).
In State v. Crawford, 301 N.C. 212, 270 S.E. 2d 102 (1980), the two mitigating factors were not submitted, but the jury nevertheless found that “the financial and emotional burdens and hardships created by his children” were a mitigating circumstance; and it recommended life imprisonment.
. State v. Silhan, No. 79-CRS-1943, 81-17-259 (Columbus Superior Court). With respect to all the North Carolina capital cases discussed in this dissent, information not found in the opinions of this Court may be found in the records on appeal or from the appropriate superior court clerks.
. I dissented in Hutchins and voted to give him a new trial on the merits because of an irreconcilable conflict between him and his trial counsel, a conflict which I also believed probably contributed to the jury’s ultimate recommendation of death.