dissenting as to sentence.
I agree with the majority that the guilt phase of defendant’s trial was free of prejudicial error. In view of the decision of the United States Supreme Court in Mills v. Maryland, 486 U.S. ---, 100 L.Ed. 2d 384 (1988), and the action of that Court in remanding to this Court our decision in State v. Lloyd, 321 N.C. 301, 364 S.E. 2d 316 (1988), vacated sub nom. Oscar Lloyd v. North Carolina, --- U.S. ---, 102 L.Ed. 2d 18 (1988), mandate reinstated by order, State v. Lloyd, 323 N.C. 622, 374 S.E. 2d 277 (1988) (Exum, C.J., and Frye, J., dissenting), for consideration in light of Mills, I cannot join the majority’s conclusion that the sentencing phase of *33defendant’s trial was free of prejudicial error. While in some cases we have to speculate as to whether the jurors’ decision not to find a particular mitigating circumstance is unanimous, we have no such question in this case. As the majority notes, in answer to the question, “Was this murder committed while the defendant was under the influence of mental or emotional disturbance?” the jury responded, “No, not unanimous.” Although some of the jurors were willing to find that the murder was committed while the defendant was under the influence of mental or emotional disturbance, they were not permitted to consider this mitigating circumstance in the final weighing process to determine whether defendant should live or die as the punishment for the crime he committed. This alone, in my opinion, brings the case within the ambit of Mills. Accordingly, I vote to give defendant a new sentencing hearing.