concurring in part, dissenting in part.
I concur in the majority’s opinion as to the guilt phase, but I dissent as to the majority’s conclusion that there was error in the sentencing phase requiring a new sentencing proceeding. While I concede the presence of McKoy error, I question whether defendant properly preserved his McKoy issue for review by this Court, and even assuming that he did, I am convinced that the error was harmless beyond a reasonable doubt.
The trial court submitted to the jury two aggravating circumstances. The jury unanimously found that the murder was committed for the purpose of avoiding a lawful arrest and that the murder was committed while defendant was engaged in the commission of the crime of first-degree kidnapping.
The court also submitted five mitigating circumstances, and the jury unanimously found that “defendant voluntarily called deputies when he learned of the warrant for the capital offense against him” and that “defendant voluntarily and peacefully surrendered himself to law enforcement officials.” The jury did not unanimously find the existence of the other three mitigating cir*529cumstances: “[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,” “the death of a childhood companion and the heart attack of his father created a sense of isolation and despair with the defendant,” or the catchall, “any other circumstance or circumstances arising from the evidence which you the jury deemed to have mitigating value.”
The trial court instructed the jury at sentencing that unanimity would be required concerning the determination of aggravating circumstances under Issue One, mitigating circumstances under Issue Two, and the weighing of these issues under Issue Three. On Issue Four, the court correctly instructed the jury as follows:
In deciding this issue, you are not to consider the aggravating circumstances standing alone. You must consider them in connection with any mitigating circumstances present from the evidence. Even if you, the jury, has not found unanimously the existence of a certain proposed mitigating circumstance, if an individual juror believes that a mitigating circumstance has been proved by a preponderance of the evidence in this case, that juror may consider that mitigating circumstance in his evaluation of whether the aggravating factors are sufficiently substantial to call for the imposition of the death penalty. . . . You, the jury, must determine how compelling and persuasive the totality of the aggravating circumstances are when compared with the totality of the mitigating circumstances present from the evidence. Again, each individual juror in making this determination, may consider any mitigating factor he believes proved by a preponderance of the evidence, whether or not the mitigating factor was found by the jury unanimously to exist. After so doing, if you are satisfied beyond a reasonable doubt that the aggravating circumstances found by you are sufficiently substantial to call for the death penalty, it would be your duty to answer the issues, “yes.” If you are not so satisfied or have a reasonable doubt, it would be your duty to answer the issues, “no.”
(Emphasis added.)
The State does not dispute that error occurred in the jury instruction for Issue Three; the issue is whether the error is prejudicial.
*530Defendant registered no objection at trial to the trial court’s instructions. While this Court has adopted a special rule for certain instances of McKoy error in which a defendant is not required to object to unanimity instructions, the special rule does not apply to the instant case. The special rule applies “[a]t least for all trials conducted after State v. Kirkley, 308 N.C. 196, 302 S.E.2d 144 (1983), and before Mills v. Maryland, 486 U.S. 367, 100 L. Ed. 2d 384 (1988).” State v. Sanderson, 327 N.C. 397, 404, 394 S.E.2d 803, 806 (1990). The error in this case occurred five months after Mills v. Maryland. Mills was filed 6 June 1988, and this trial began over four months later on 24 October 1988. The court’s instructions to the jury during the penalty phase of the trial occurred on 8 and 9 November 1988, five months after Mills was handed down.
Where a defendant fails to object to jury instructions at trial, this Court will review the challenged instructions under the plain error doctrine. State v. Huff, 325 N.C. 1, 381 S.E.2d 635 (1989), judgment vacated on other grounds, — U.S. —, 111 L. Ed. 2d 777 (1990). Under that doctrine, the Court’s review is limited only to “exceptional” cases containing “fundamental” error.
“[T]he plain error rule ... is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done,’ or ‘where [the error] is grave error which amounts to a denial of a fundamental right of the accused,’ or the error has ‘ “resulted in a miscarriage of justice or in the denial to appellant of a fair trial” ’ or where the error is such as to ‘seriously affect the fairness, integrity or public reputation of judicial proceedings’ . . . .”
State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982) (footnotes omitted) (citations omitted)).
Assuming, arguendo, however, that defendant was not required to object at trial and that the issue is preserved, I disagree with the majority and conclude that the McKoy error was harmless, even under the less demanding standard of review. Where an objection is properly preserved for appeal, in order to find harmless error, this Court must find beyond a reasonable doubt that no different result would have been reached if the individual jurors had been permitted to consider mitigating circumstances not *531unanimously found. State v. Quesinberry, 328 N.C. 288, 294, 401 S.E.2d 632, 635 (1991) (Meyer, J., dissenting) (citing cases). The burden is on the State to prove beyond a reasonable doubt that the jury would nonetheless have recommended death even if each individual juror had been allowed to consider all of the mitigating circumstances which he or she individually found to be present. Id.
Under the facts of this particular case, I am convinced beyond a reasonable doubt that the jury would have recommended the sentence of death even if the individual jurors had considered the three mitigating circumstances not unanimously found. A review of the record indicates that there was no evidence presented to the jury by which a reasonable juror could find any of the mitigating circumstances that the jury did not unanimously find to exist. Id. at 294-95, 401 S.E.2d at 635 (citing State v. McKoy, 327 N.C. 31, 44 n.4, 394 S.E.2d 426, 433 n.4 (1990)).
CIRCUMSTANCE: IMPAIRED CAPACITY
The majority concludes that there was adequate evidence to support this circumstance such that a reasonable juror might have found that mitigating circumstance in the absence of a unanimity requirement. I disagree. The evidence of impairment is sparse, attenuated, and completely unconvincing, and no reasonable juror would have found this circumstance to exist even had the jury been correctly instructed.
Defendant’s evidence of impairment involves his statement that “they” had consumed two fifths of vodka and had smoked some marijuana without any indication whatsoever as to the amount defendant consumed. There was also testimony by defendant’s mother' that defendant had undergone two psychological evaluations, one when defendant was approximately ten years old and another in 1986. Although it was not disclosed to the jury, there was an indication during a voir dire that the 1986 evaluation was ordered as a result of a first-degree burglary charge. The only evidence before the jury with regard to the 1986 psychological evaluation was that Dr. Alford of Halifax Mental Health examined defendant on 29 May 1986, and there was no evidence whatsoever before the jury as to the reason for the examination or its result. I conclude that it is questionable if there was sufficient evidence of diminished capacity to even submit the issue to the jury. The mere fact that it was submitted and rejected will not support a finding of prejudicial error.
*532Defendant in this case tormented his victim with a snake, beat him, compelled him to buy alcohol, kidnapped him, and stabbed him. Under the facts of this case, no reasonable juror could determine that defendant was impaired.
CIRCUMSTANCE: DEATH OF A FRIEND AND Heart Attack of Father Ten Years Earlier
The evidence is undisputed that defendant had a friend to die and that his father had a heart attack some ten years before this offense was committed. His father, however, was alive and in the courtroom, and it is difficult to conceive of how either of these events had any effect on defendant’s killing of a retarded black male. Defendant’s mother testified as follows:
When Horace died, Carl drew inside of hisself (sic) and he felt like the world was against him and when his father had the heart attack, which wasn’t but a couple of years later, it seemed to take his father away from him and he just didn’t understand what was going on in the world.
Defendant’s mother further testified that defendant cried at the Halifax County jail on 26 August 1988. I conclude that this evidence does not support a finding that defendant suffered from any unusual sense of isolation and despair, and nothing about this evidence reduces the culpability of the senseless murder of Aaron Parker. Simply because the trial court submitted this issue to the jury at defendant’s request does not indicate that there is any possible mitigating value to this testimony. No reasonable juror could find this to have mitigating value.
CIRCUMSTANCE: CATCHALL
On appeal, defendant contends that there are three circumstances which could have been found under the “catchall.” Defendant notes that his age, his alleged alcohol problem, and his limited criminal record are possible mitigating circumstances which the jury, if properly instructed, could have found.
A. Defendant’s age at the time offense occurred.
Defendant was apparently twenty years old at the time he murdered Aaron Parker. Although the court specifically asked trial counsel if they wanted this circumstance submitted to the jury, they declined and therefore waived any right to have this matter submitted to the jury. However, defendant’s attorney did argue *533to the jury, over objection, that young people make mistakes and that defendant should be forgiven. In this case, defendant had been out on his own caring for himself, was living with his girlfriend, and was apparently working. He had been involved with the law and charged with several criminal offenses. The evidence shows defendant’s physical and intellectual development and level of experience to be normal. Especially in light of the fact that defendant’s counsel objected to the matter being placed in writing before the jury, no reasonable juror could have found this to have mitigating value, and age should not have been submitted to the jury. See State v. Johnson, 317 N.C. 343, 393-94, 346 S.E.2d 596, 623-24 (1986).
B. Defendant’s alleged alcohol problem.
While there is a great deal of discussion in the record in this case about drinking, there is very little testimony of defendant’s alleged “alcohol problem.” Veronica Wynne testified that her brother drank many times, but “they didn’t really drink that much for mama and daddy’s sake.” More importantly, defendant’s alleged “alcohol problem” was not specifically submitted to the jury as a factor in mitigation, and defendant on appeal cites no testimony to support his contention that the jury, if properly instructed, could have found an “alcohol problem” to exist or that, if found, it would have had mitigating value. No reasonable juror could have found any mitigating value to the sparse testimony of alcohol abuse.
C. Defendant’s prior criminal record.
Defendant specifically requested that the judge not submit the circumstance of no significant history of prior criminal activity. The reason for this request is obvious, as the State entered into the record the following criminal charges:
1. first-degree burglary,
2. felonious larceny (two counts),
3. felony breaking and entering a motor vehicle,
4. felony breaking and entering a motor vehicle,
5. wanton injury and destroying real property,
6. disorderly conduct,
7. simple assault,
*5348. having an unregistered vehicle,
9. having an expired inspection sticker,
10.possession of drug paraphernalia.
It is absurd to think that the jury, under proper instructions, could find in mitigation a circumstance that defendant successfully concealed from them. The fact that defendant kept his criminal record out of evidence during the sentencing proceeding should not be the source of prejudicial error in this case.
While I concede that McKoy error occurred during the sentencing proceeding, it is questionable whether it was properly preserved for review; and, in any event, it was harmless beyond a reasonable doubt. I find no other error in the sentencing proceeding and vote to affirm the sentence of death.
Justice Mitchell joins in this concurring and dissenting opinion.