dissenting.
I disagree with the majority’s holding in this case and in State v. McCarver, 341 N.C. 364, 396, 462 S.E.2d 25, 43 (1995), that a trial court correctly states the law in a capital sentencing proceeding when it instructs the jury that it must be unanimous in order to answer “no” to Issues One, Three and Four on the “Issues and Recommendation as to Punishment” form. I especially disagree with the majority’s apparent holding that the instruction is somehow mandated by the North Carolina Constitution. Accordingly, for the reasons stated in my dissent in McCarver, and for the additional reasons stated here, I dissent.
Defendant’s eleventh assignment of error in this capital sentencing case is as follows:
*467Did the trial court commit prejudicial error by instructing the JURY CONCERNING THEIR FAILURE TO AGREE UPON AN APPROPRIATE ANSWER TO THE FOURTH ISSUE IN SUCH A MANNER AS TO IMPROPERLY COERCE UNANIMITY?
The trial court instructed the jury immediately after the lunch recess on 16 March 1993 as follows:
[I]t is not enough for the State to prove from the evidence beyond a reasonable doubt the existence of one or more aggravating circumstances. It must also prove beyond a reasonable doubt that such aggravating circumstances are sufficiently substantial to call for the death penalty, and before you may answer Issue Number Four, “Yes,” you must agree unanimously that they are.
If you answer Issue Number Four, “No,” you must recommend that the defendant be sentenced to life imprisonment. If you answer Issue Number Four, “Yes,” it would be your duty to recommend that the defendant be sentenced to death.
The jury deliberated concerning defendant’s sentence until 4:55 p.m. on the afternoon of 16 March 1993. The jury then recessed until the next day.
On two different occasions during the morning of 17 March 1993, the trial court ascertained that the jury had not reached a unanimous verdict and requested that the jury resume its deliberations. After many hours of deliberation, the jurors were obviously confused as to what they should do. Shortly before noon, they indicated in written communication to the court that their vote was eleven to one and .that their answer to Issue Four was “No.” More specifically, the note stated, in pertinent part: “Issue 4 contradicts recommendation as to punishment (eg.) Issue 4 is No yet Recommendation states we the jury ‘unanimously’ Recommend [ — ] we are not unanimous (11 to 1).”
The trial court and defendant’s counsel engaged in a lengthy discussion concerning the appropriate response to the jury’s statement. At the suggestion of the State, the trial court gave the jury a supplemental instruction as follows:
First question is, “Issue Number Four contradicts recommendation as to punishment. Example: Issue Number Four is no, and recommendation states, we, the jury, unanimously recommend.” And you go on to say, “We, are not unanimous,” and that “We are eleven to one.”
*468And, members of the jury, I’m going to give you these additional instructions, and will ask you to pay careful attention.
As to Issue Number Four, I instruct you that your answer to Issue Number Four — that your answer to Issue Number Four, whether you answer “yes” or “no” must be unanimous.
And, members of the jury, I want to make it clear that as you answer Issue Number Four “yes” or “no” unanimously, then that will of consequence determine your answer to the recommendation. So please understand if you answer Issue Number Four “yes,” your recommendation will be the death penalty. And if you answer Issue Number Four “no,” your recommendation will be life imprisonment.
I conclude that the trial court committed reversible error in responding to the question from the sentencing jury, because the court’s supplemental instruction incorrectly informed the jury that it could not answer “no” to Issue Four on the written Issues and Recommendation As To Punishment form unless all twelve jurors concurred in the negative answer. I further conclude that this error entitles defendant to a new sentencing proceeding.
In this case, the jury was given a form entitled: Issues and Recommendation as to Punishment. The first part of the form is labeled: Issues. There are four issues on the form. Issue Two relates to the finding of mitigating circumstances, and contains no reference to unanimity. Issues One, Three and Four, on the other hand, begin as follows: “Do you unanimously find.” It seems clear to me that if the jurors vote eleven to one on issue One, Three or Four, their answer to that issue has to be “no.” The second part of the form is labeled: Recommendation As To Punishment. There is one recommendation on the form. It is: “We, the jury unanimously recommend that the Defendant Elton Ozell . McLaughlin, be sentenced to
In the instant case, the jury’s note indicated that it had answered issue Four “no” because its vote was eleven to one. Issue Four on the Issues and Recommendation form read as follows:
Do you unanimously find beyond a reasonable doubt that the aggravating circumstance or circumstances you found is, or are, *469sufficiently substantial to call for the imposition of the death penalty when considered with the mitigating circumstance or circumstances found by one or more of you?
ANSWER:_
The judge should have instructed the jurors that they should continue to try to reach unanimity as to Issue Four, but if they could not unanimously answer “yes” to Issue Four, the foreman should write “no” in the space provided for the answer to that issue. Instead, the trial judge, as the majority does here, failed to distinguish between the issues the jury must answer in reaching a recommendation as to life or death and the recommendation itself. The jury can recommend death only if it unanimously answers yes to Issues One, Three and Four. If the jury does not unanimously answer yes to Issues One, Three and Four, it cannot recommend death as punishment for defendant’s crime. See N.C.G.S. § 15A-2000(b), (c) (Supp. 1994). If the jury cannot unanimously agree to its sentencing recommendation, the judge will impose a sentence of life imprisonment. N.C.G.S. § 15A-2000(b) (Supp. 1994).
In this case, the jury was given two alternative instructions upon which to determine its sentencing recommendations: (1) the law as stated in the court’s initial instructions and on the Issues and Recommendation As To Punishment form, and (2) the law as stated in the supplemental instruction. Where a jury is given two alternate theories upon which to base its decision, one of which is improper, the matter must be remanded for a new proceeding. State v. Pakulski, 319 N.C. 562, 574, 356 S.E.2d 319, 326 (1987). This result is required because the appellate court is unable to determine upon which instructions the jury relied in reaching its decision and, therefore, must' assume that the jury relied on the erroneous, improper instructions. Id. This Court is “not at liberty” to assume upon which instructions defendant’s sentencing jury relied. State v. Belton, 318 N.C. 141, 162, 347 S.E.2d 755, 768 (1986). We “cannot assume the jury adopted a theory favorable to the state; instead, [we must] construe [] the ambiguity in favor of defendant.” Id.
Furthermore, I conclude that the supplementary instruction had a probable impact on the jury’s recommendation of defendant’s death sentence. As noted earlier, the jury informed the judge that its vote at the time on Issue Four was eleven to one. Had the jury been properly instructed, it may have answered “no” to Issue Four, thus resulting in a sentence of life imprisonment. Accordingly, defendant’s death sen*470tence should be vacated and the case remanded for a new capital sentencing proceeding in accord with N.C.G.S. § 15A-2000.
Justice WHICHARD joins in this dissenting opinion.