I fully concur in the result reached and with all aspects of the majority opinion except the dictum that a trial judge should not inform a jury considering whether to impose the death penalty that failure of the jury to agree on the sentence within a reasonable time will result in the judge’s imposing a life sentence under G.S. 15A-2000(b). Since the majority has properly held that defendant waived his right to complain about the judge’s failure to give such an instruction and since the matter must be returned for a new sentencing proceeding, the proposition with which I disagree is not necessary to decide this case.
More importantly, this restriction on a trial judge’s communication with the jury seems unwise and actually to run counter to the reasons given by the majority for it. The majority says that such an instruction at best “would be of absolutely no assistance to the jury in making its recommendation. At worst, the instruction would permit the jury to escape the onerous task of recommending the sentence to be imposed.” To the contrary I believe the instruction would inform the jury that it cannot escape the task of recommending a sentence. Whatever it does some sentence will be imposed as a result. If the jury unanimously agrees on a sentence of life imprisonment or death, that sentence to which there is unanimous agreement shall be imposed. On the other hand if the jury cannot agree, then a sentence of life imprisonment will be imposed. Since its failure to agree is tantamount to a final determination of the case and has the same legal effect as a unanimous decision for life imprisonment, the jury should be instructed on this effect of its disagreement. Being fully informed as to the final legal effect of a disagreement, the jury is bound to be in a position to perform its function more intelligently.
The Pattern Jury Instruction Committee of the Conference of Superior Court Judges has recommended that this instruction be given. N.C.P.I. —Crim. 150.10. The instruction recommended by this committee reads:
*379“If you [the jury] unanimously recommend that the defendant be sentenced to death, the Court will be required to impose a sentence of death. If you unanimously recommend a sentence of life imprisonment, the Court will be required to impose a sentence of imprisonment in the State’s prison for life. If you are unable, within a reasonable time, unanimously to agree on your recommendation, the Court shall impose a sentence of life imprisonment.”
A footnote to the last sentence of this instruction reads as follows:
“The Committee considered deleting this sentence on the ground that the information which it contains might unduly encourage juror holdouts and early deadlocks. However, since the consequences of a jury deadlock are different at the separate sentencing proceeding under G.S. § 15A-2000 than at the guilt phase of any trial, the Committee believes that the jury is entitled to have this information. To avoid undue emphasis, it is given only once, and at the beginning of the instruction.”
I believe the committee, for the reasons it stated, wisely determined to include such an instruction. Normally a jury deadlock results in a mistrial and presentation of the case in its entirety to a new jury. A jury would be so instructed in the event of a deadlock on the guilt phase of the proceeding. Many jurors of their own knowledge know that this is normally the result of a deadlock. In a death case a jury should not be permitted to labor under the incorrect assumption that a deadlock on the question of sentence would result in a new proceeding before a new jury.
Further, if a jury is not so instructed at the outset and then deadlocks on the question of sentence, should the trial judge then be entitled to inform them of the consequences in an effort to avoid a deadlock? If he does, a defendant thereafter sentenced to death would be in a good position to argue that the verdict was unduly coerced. The better practice is to follow the recommendation of the Pattern Jury Instruction Committee and routinely include such an instruction even absent a request by either side.
Frankly I am at a loss to know whether failure to give such an instruction prejudices the state or the defendant. If it is not *380given the jury knows only that failure unanimously to recommend death will preclude the death penalty being imposed in this proceeding. It may, however, assume that by being deadlocked some other jury at some future time will have to make the decision. It seems to me that a jury in this state of mind might more easily deadlock than a jury that knows a deadlock will result in a life sentence. In the latter case those jurors favoring death are likely to urge their views on the others more vociferously. If this is so, failure to give the instruction would tend to prejudice the state.
In a case where defendant asks for the instruction for reasons best known to him, I believe he is entitled to have it.
Clearly the attorneys in the case can read the statute to the jury on the effect of a disagreement. G.S. 84-14; State v. McMorris, 290 N.C. 286, 225 S.E. 2d 553 (1976); State v. Britt, 285 N.C. 256, 204 S.E. 2d 817 (1974). If they do, it seems particularly unwise to preclude the trial judge from impartially instructing the jury on the law applicable to the point.