mckoy north carolina argued october decided march petitioner convicted north carolina murder trial sentencing phase jury made binding recommendation death finding unanimously required instructions given orally written verdict form existence two statutory aggravating circumstances existence two eight possible mitigating circumstances mitigating circumstances found insufficient outweigh aggravating circumstances found aggravating circumstances found sufficiently substantial call imposition death penalty considered mitigating circumstances found state rejected petitioner challenge sentence distinguishing mills maryland mills reversed death sentence imposed maryland capital punishment scheme scheme precluded jury considering mitigating evidence unless jurors agreed existence particular circumstance supported evidence contrast maryland procedure required jury impose death penalty found least one aggravating circumstance mitigating circumstances unanimously agreed mitigating circumstances outweigh aggravating ones emphasized issue four north carolina scheme allowed jury recommend life imprisonment felt aggravating circumstances call death penalty even found several aggravating circumstances mitigating ones also reasoned whereas maryland scheme evidence remained legally relevant long one jurors found presence mitigating circumstance supported evidence north carolina system evidence introduced support mitigating factor jury unanimously find legally irrelevant excluded jurors consideration held north carolina unanimity requirement impermissibly limits jurors consideration mitigating evidence hence contrary decision mills supra state issue four ameliorate constitutional infirmity created requirement although jury opt life imprisonment without finding mitigating circumstances required make decision based circumstances unanimously finds issue two thus one holdout juror prevent others giving effect evidence feel calls lesser sentence moreover even jurors agree mitigating circumstances give effect evidence supporting circumstances unless agree unanimously circumstance addition state holding distorts concept relevance mitigating circumstances unanimously found present jury become irrelevant mitigation merely one jurors either believe circumstance proved factual matter think circumstance though proved mitigated offense furthermore mere declaration evidence legally irrelevant bar consideration evidence sentence reasonably find warrants sentence less death skipper south carolina eddings oklahoma state misplaces reliance patterson new york support view unanimity requirement standard proof intended ensure reliability mitigating evidence patterson involve validity capital sentencing procedure eighth amendment requires allow consideration mitigating evidence answer jury permitted consider mitigating evidence decides collectively issue two whether mitigating circumstances exist mills requires juror permitted consider give effect mitigating evidence deciding ultimate question whether vote death sentence consideration may foreclosed one jurors failure find mitigating circumstance issue two moreover requiring unanimity mitigating factors constitutional merely state also requires unanimity aggravating circumstances penry lynaugh pp vacated remanded marshall delivered opinion brennan white blackmun stevens joined white post blackmun post filed concurring opinions kennedy filed opinion concurring judgment post scalia filed dissenting opinion rehnquist joined post malcolm ray hunter argued cause petitioner briefs gordon widenhouse robert mahler joan byers special deputy attorney general north carolina argued cause respondent brief lacy thornburg attorney general michael carpenter special deputy attorney general steven bryant barry mcneill assistant attorneys general brief amici curiae urging affirmance filed state california et al john van de kamp attorney general california richard iglehart chief assistant attorney general john sugiyama senior assistant attorney general herbert wilkinson dane gillette deputy attorneys general joined siegelman attorney general alabama robert corbin attorney general arizona john kelly chief state attorney connecticut michael bowers attorney general georgia james jones attorney general idaho linley pearson attorney general indiana frederic cowan attorney general kentucky william webster attorney general missouri michael moore attorney general mississippi brian mckay attorney general nevada peter perretti attorney general new jersey hal stratton attorney general new mexico robert henry attorney general oklahoma ernest preate attorney general pennsylvania jim mattox attorney general texas mary sue terry attorney general virginia justice marshall delivered opinion case address constitutionality unanimity requirement north carolina capital sentencing scheme requirement prevents jury considering deciding whether impose death penalty mitigating factor jury unanimously find hold decision mills maryland north carolina unanimity requirement violates constitution preventing sentencer considering mitigating evidence therefore vacate petitioner death sentence remand resentencing petitioner dock mckoy convicted stanly county north carolina murder sentencing phase mckoy trial trial instructed jury orally written verdict form answer four questions determining sentence issue one asked unanimously find evidence beyond reasonable doubt existence one following aggravating circumstances app jury found two statutory aggravating circumstances mckoy previously convicted felony involving use threat violence person murder committed deputy sheriff engaged performance official duties jury therefore answered yes issue one instructed proceed next issue issue two asked unanimously find evidence existence one following mitigating circumstances judge submitted jury eight possible mitigating circumstances respect circumstance judge orally instructed jury follows unanimously find mitigating circumstance preponderance evidence indicate foreman write space verdict form verdict form reiterated unanimity requirement space mitigating circumstance write yes unanimously find mitigating circumstance preponderance evidence write unanimously find mitigating circumstance preponderance evidence jury unanimously found statutory mitigating circumstance mckoy capacity appreciate criminality conduct conform conduct requirements law impaired also unanimously found nonstatutory mitigating circumstance mckoy borderline intellectual functioning iq test score jury however unanimously find statutory mitigating circumstances mckoy committed crime influence mental emotional disturbance mckoy age time crime mitigating factor jury also failed find unanimously four nonstatutory mitigating circumstances several decades mckoy exhibited signs mental emotional disturbance defect went untreated mckoy mental emotional disturbance aggravated poor physical health mckoy ability remember events day murder actually impaired circumstance arising evidence mitigating value jury found existence mitigating circumstances instructed answer issue three asked unanimously find beyond reasonable doubt mitigating circumstance circumstances found insufficient outweigh aggravating circumstance circumstances found emphasis added jury answered issue yes proceeded final issue issue four asked unanimously find beyond reasonable doubt aggravating circumstance circumstances found sufficiently substantial call imposition death penalty considered mitigating circumstance circumstances found emphasis added jury responded yes pursuant verdict form instructions jury therefore made binding recommendation death pendency petitioner direct appeal north carolina decided mills maryland supra reversed death sentence imposed maryland capital punishment scheme jury instructions verdict form created substantial probability reasonable jurors well may thought precluded considering mitigating evidence unless jurors agreed existence particular circumstance reasoned allowing holdout juror prevent jurors considering mitigating evidence violated principle established lockett ohio sentence may precluded giving effect mitigating evidence petitioner challenged sentence basis mills north carolina split decision purported distinguish mills two grounds therefore denied relief first noted maryland procedure required jury impose death penalty found least one aggravating circumstance find mitigating circumstances unanimously found mitigating circumstances weigh aggravating circumstances contrast stated issue four north carolina scheme allows jury recommend life imprisonment feels aggravating circumstances sufficiently substantial call death penalty even found several aggravating circumstances mitigating circumstances ibid second asserted whereas maryland scheme evidence remained legally relevant long one jurors found presence mitigating circumstance supported evidence north carolina evidence effect becomes legally irrelevant prove mitigation defendant fails prove satisfaction jurors evidence supports finding mitigating factor north carolina believed found relevance evidence mills significant factor stated one argued maryland appeals suggest mitigating evidence rendered legally irrelevant one holdout vote quoting mills thus interpreted mills allowing define irrelevant exclude jurors consideration evidence introduced support mitigating circumstance jury unanimously find accordingly state upheld mckoy death sentence ii despite state inventive attempts distinguish mills decision clearly governs case first north carolina issue four ameliorate constitutional infirmity created unanimity requirement issue four like issue three allows jury consider mitigating factors unanimously finds issue two although jury may opt life imprisonment even fails unanimously find mitigating circumstances fact remains jury required make decision based circumstances unanimously finds unanimity requirement thus allows one holdout juror prevent others giving effect evidence believe calls sentence less death eddings oklahoma quoting lockett supra plurality opinion moreover even jurors agree mitigating circumstances north carolina scheme prevents giving effect evidence supporting circumstances deliberations issues three four unless unanimously find existence circumstance precise defect compelled us strike maryland scheme mills see decision mills limited cases jury required impose death penalty finds aggravating circumstances outweigh mitigating circumstances mitigating circumstances exist rather held height arbitrariness allow require imposition death penalty juror able prevent giving effect mitigating evidence ibid emphasis added second state holding mitigating evidence relevant jury unanimously finds proves existence mitigating circumstance distorts concept relevance universally recognized evidence relevant inquiry need conclusively prove ultimate fact issue tendency make existence fact consequence determination action probable less probable without evidence new jersey quoting fed rule evid meaning relevance different context mitigating evidence introduced capital sentencing proceeding chief justice north carolina stated dissent case relevant mitigating evidence evidence tends logically prove disprove fact circumstance reasonably deem mitigating value whether accepts rejects evidence bearing evidence relevancy relevance exists even fails persuaded evidence necessary item evidence alone convinces trier fact sufficient convince trier fact truth proposition offered exum dissenting citing graham handbook federal evidence ed furthermore holdings skipper south carolina eddings oklahoma supra show mere declaration evidence legally irrelevant mitigation bar consideration evidence sentence reasonably find warrants sentence less death skipper trial excluded irrelevant mitigation evidence defendant adjusted well prison life reversed death sentence ground evidence nature relevant sentencing determination might convince jury defendant pose undue danger jailers fellow prisoners lead useful life behind bars sentenced life imprisonment similarly eddings sentencing ruled precluded law considering evidence defendant troubled childhood emotional disturbance state criminal appeals affirmed holding evidence irrelevant mitigation support legal excuse criminal liability reversed ground evidence undoubtedly relevant mitigation even excuse defendant conduct state save unanimity requirement characterizing standard proof intended ensure reliability mitigating evidence state reliance patterson new york misplaced case rejected due process challenge new york law requiring defendant charged murder prove preponderance evidence affirmative defense extreme emotional disturbance order reduce crime manslaughter reasoned state constitutionally required provide affirmative defense state nevertheless chooses recognize factor mitigates degree criminality punishment state may assure fact established reasonable certainty patterson however involve validity capital sentencing procedure eighth amendment constitution requires allow consideration mitigating evidence capital cases barrier consideration must therefore fall stated mills decisions relevant whether barrier sentencer consideration mitigating evidence interposed statute lockett ohio supra hitchcock dugger sentencing eddings oklahoma supra evidentiary ruling skipper south carolina supra must true respect single juror holdout vote finding presence mitigating circumstance whatever cause conclusion necessarily sentencer failure consider mitigating evidence risks erroneous imposition death sentence plain violation lockett duty remand case resentencing eddings oklahoma concurring finally reject state contention requiring unanimity mitigating circumstances constitutional state also requires unanimity aggravating circumstances maryland scheme mills also required unanimity mitigating aggravating circumstances see consistent treatment however save unanimity requirement mitigating circumstances case state may limit sentencer consideration mitigating evidence merely places limitation consideration aggravating circumstances stated penry lynaugh contrast carefully defined standards must narrow sentencer discretion impose death sentence constitution limits state ability narrow sentencer discretion consider relevant evidence might cause decline impose death sentence mccleskey kemp emphasis original indeed precisely punishment directly related personal culpability defendant jury must allowed consider give effect mitigating evidence relevant defendant character record circumstances offense iii conclude north carolina unanimity requirement impermissibly limits jurors consideration mitigating evidence hence contrary decision mills therefore vacate petitioner death sentence remand case north carolina proceedings inconsistent opinion ordered footnotes although provision provided statute grouped nonstaturory circumstances allows consideration mitigating factors statutorily specified north carolina capital sentencing scheme jury finds statutory mitigating circumstance present circumstance deemed mitigating value matter law state stokes nonstatutory mitigating circumstances jury must decide whether circumstance proved whether mitigating value see state pinch cert denied citing state johnson fact case presents even clearer case reversal mills maryland mills divided issue whether reasonable juror interpreted instructions case allowing individual jurors consider mitigating circumstances jury unanimously found compare rehnquist dissenting indeed dissent mills challenge holding instructions interpreted unconstitutional case contrast instructions verdict form expressly limited jury consideration mitigating circumstances unanimously found justice white concurring nothing opinion understand invalidate federal constitutional grounds jury instruction require unanimity respect mitigating circumstances requires juror consider mitigating circumstance convinced existence preponderance evidence instruction juror must weigh balance mitigating circumstance mind established preponderance evidence whether jurors likewise convinced neither opinion hold infer federal constitution forbids state place defendant burden persuasion respect mitigating circumstances basis concur opinion justice blackmun concurring join opinion write separately underscore conviction mills maryland controls case mills correctly decided dissent view mills simply assumed decide invalidity requirement mitigating factors considered jury found unanimously characterization squared text mills opinion part ii opinion directly addressed question whether requirement permissible concluded rule mandating unanimous agreement juror consider particular mitigating factor forbidden decisions lockett ohio eddings oklahoma conclusion essential step rationale overturning maryland statute ambiguous jury instructions even capital case violate eighth amendment simply ambiguous question addressed part iii opinion whether reasonable juror might interpreted instructions precluding consideration mitigating factor found unanimously wholly lacking constitutional significance rule permissible rather maryland instructions held invalid susceptible two plausible interpretations one interpretations instructions unconstitutional dissent acknowledges language mills suggesting unanimity requirement contravene decisions post dissent contends however suggestions dicta dissent view propriety unanimity requirement properly since maryland conceded requirement unconstitutional argued instructions imposed rule position untenable first even issue disputed resolution question constitute binding precedent unusual hardly unheard decide significant legal questions parties joined issue see teague lane penry lynaugh holding teague principles apply capital sentencing although wisdom deciding issues without briefing argument questioned see teague brennan dissenting penry stevens concurring part dissenting part suggested heretofore decisions lacking precedential value dissent approach stare decisis allow respondent means timely concession avoid resolution recurring legal question might litigated propitious time approach require litigants seeking rely decision must scour briefs order determine points contested law moreover dissent distorts record contending propriety unanimity requirement issue mills argument section petitioner brief mills began underlying question whether maryland legislature may constitutionally require unanimous agreement jurors mitigating circumstance may considered weighing process brief petitioner bulk state response devoted argument reasonable juror interpret instructions manner mills suggested possible state also contended however interpretation statute proffered petitioner unconstitutional restriction existed unanimity particular mitigating circumstance required weighed determining appropriate sentence however lockett eddings relate restrictions input subsequent deliberative process although jury twelve component parts single entity rejection mitigating circumstance introduction full consideration evidence simply factual determination legal impediment consideration evidence requirement jury unanimity simply type restriction found unconstitutional lockett eddings see state kirkley brief respondent mills footnotes omitted ii remain convinced moreover mills correctly decided apparent rule issue implicates concerns expressed lockett eddings view pointless ask whether sentence case jury jurors jurors jury forbidden give effect mitigating evidence deem persuasive right guaranteed lockett effectively negated even restriction imposed member sentencing body state law provided mitigating evidence first presented foreperson decide portions jurors allowed view doubt sentencer ability give effect evidence impaired fact north carolina permits individuals exercise veto hardly makes impairment less severe dissent suggests rule announced mills aberration quirk eighth amendment jurisprudence fact however north carolina unanimity requirement represents extraordinary departure way juries customarily operate juries typically called upon render unanimous verdicts ultimate issues given case understood different jurors may persuaded different pieces evidence even agree upon bottom line plainly general requirement jury reach agreement preliminary factual issues underlie verdict might compare example criminal trial defendant presents testimony alibi witness surely supposed state enforce evidentiary rule requiring preliminary jury determination credibility evidence providing juror give weight unless every juror deemed worthy belief rule plainly interfere ability accused present defense factfinder rule issue impairs defendant right evidence mitigation considered sentence dissent points cases upheld state rules place upon criminal defendants burden proving affirmative defenses see patterson new york two reasons however cases point first reasoning cases appears rest upon greater power includes lesser argument since state constitutionally required recognize defense may take lesser step placing burden proof upon defendant see since state may exercise greater power prohibiting capital defendant introducing mitigating evidence reasoning inapposite second dissent analogy cases confuses concepts unanimity burden proof say burden proof may placed upon defendant says nothing situation jurors others believe burden satisfied dissent analogy presumes elements offense proved jury failure agree affirmative defense results conviction north carolina jury failure agree presence given mitigating factor creates finding factor present cases say clear conviction rather hung jury outcome see state harris although defendant bears burden proof insanity vast difference instruction persuasiveness evidence instruction agreement jury agree upon defendant sanity verdict reached emphasis original peculiar infirmity north carolina sentencing procedure simply places burden proving mitigation upon defendant disagreements among jurors whether burden satisfied must resolved favor state iii mills described two scenarios operation unanimity requirement result sentence death even though first scenario jurors believed mitigating circumstances outweighed aggravation first hypothetical jurors believed six mitigating factors present twelfth juror veto prevented evidence mitigation considered final stage sentencing process second scenario jurors agreed mitigating factors present outweighed factors aggravation jury unanimous existence particular mitigating circumstance concluded certainly height arbitrariness allow require imposition death penalty circumstances postulated ibid assessment seems unanswerable course north carolina statute also requires jury unanimous existence given aggravating factor appropriateness death penalty light aggravating mitigating circumstances unanimously found possibility single juror aberrational views thwart majority therefore sometimes may work favor capital defendant injustice capital sentence case jurors believe mitigation outweighs aggravation hardly compensated possibility case defendant escape death penalty jurors believe death appropriate state reliance symmetry law seems antithesis constitutional command sentence allowed consider character record individual offender circumstances particular offense constitutionally indispensable part process inflicting penalty death woodson north carolina plurality opinion therefore agree petitioner death sentence must vacated join opinion cf grant oluntary cessation allegedly illegal conduct deprive tribunal power hear determine case make case moot also compare brief respondent mills petitioner views jury twelve independent sentencers operating free views others view completely contrary notion guided discretion post likewise incompatible theory principle guided discretion previously held essential validity capital sentencing little guidance system requires individual juror bring ultimate decision idiosyncratic notion facts mitigating untempered discipline group deliberation agreement justice white separate opinion mills maryland provide basis recharacterizing holding far certain justice white concurrence bear construction dissent places upon event meaning majority opinion found within opinion gloss individual justice chooses place upon authoritative moreover jury inability agree ultimate issue typically results deadlock hung jury inability agree requires jury proceed upon assumption particular mitigating circumstance proved exist one significant exception principle support dissent position federal criminal prosecutions unanimous verdict required courts appeals general agreement nanimity means conclusory agreement defendant violated statute question requirement substantial agreement principal factual elements underlying specified offense ferris accord duncan beros schiff cert denied gipson see bouquett questioned duncan rule require bit evidence unanimously credited entirely discarded require unanimous agreement nature defendant violation simply fact violation occurred north carolina requirement aggravating circumstances found unanimously therefore analogue albeit imperfect another area law principle protection defendant however premise equiring vote twelve jurors convict defendant little insure right unanimous verdict protected unless prerequisite jury consensus defendant course action also required gipson analogous principle requiring jurors voting acquit must agree upon basis reasonable doubt justice kennedy concurring judgment jury unanimity true accepted vital mechanism ensure real full deliberation occurs jury room jury ultimate decision reflect conscience community yet unique interaction elements sentencing statute issue allow requirement unanimity produce capital sentence lacks unanimous support jurors thought inappropriate consequence statute operate manner jury instructions mills maryland construed majority case produce result height arbitrariness sole rationale concur judgment reliance decisions lockett ohio eddings oklahoma support today result stretches cases beyond proper bounds threatens add confusion already troubled area jurisprudence case may resolved ground consistent precedents evident mills opinion relevant section decision begins petitioner argument straightforward well illustrated hypothetical situation contends possible maryland capital sentencing scheme eleven jurors agree six mitigating circumstances result mitigating circumstance found consequently nothing weigh aggravating circumstance found judgment death even though eleven jurors think death penalty wholly inappropriate brief petitioner problem constitutionality possibility jurors agreeing one juror deciding death position course difficult imagin arbitrary system luck draw get one juror tr oral pp application death penalty basis single juror vote intuitively disturbing important represents imposition capital punishment system described arbitrary capricious mills described result height arbitrariness ibid given description apparent result mills fits within line cases forbidding imposition capital punishment basis caprice arbitrary unpredictable fashion arbitrary freakish means see franklin lynaugh california brown holdout juror incident occur north carolina statute jurors find aggravating factor agree sufficient gravity support penalty death jurors find outweighing mitigating factor one juror refuses whatever reason accept jurors follow instructions must assume must disregard mitigating circumstance balancing step statute performed one result judgment death even though eleven jurors think death penalty wholly inappropriate mills supra given reasoned moral judgment inherent capital sentencing jury extreme arbitrariness potential result evident said must stressed much opinion today case goes without cause much true addition discussing extreme arbitrariness statute issue mills opinion went state unanimity requirement inconsistent holdings lockett eddings hitchcock dugger skipper south carolina even stressed unanimity requirement combined final stage maryland statute produce arbitrary result jury unanimously agree existence mitigating circumstance may give mitigating evidence effect whatsoever must impose sentence death emphasis added agree statement today ur decision mills limited cases jury required impose death penalty finds aggravating circumstances outweigh mitigating circumstances mitigating circumstances exist ante emphasis original statute mills include requirement statute also albeit limited circumstances allow juror decision override others defendant ultimate sentence reason concur judgment vacating sentence recognize arbitrary operation north carolina system exclusive basis decision unanimity requirement standing alone invalid lockett line cases lockett invalidated ohio statute precluded presentation certain types mitigating evidence jury eddings skipper hitchcock applied rule judicial instructions barred consideration certain nonstatutory evidence bearing defendant character recently penry lynaugh held lockett requirements met statutory scheme provided avenue mitigating evidence considered matter clearly evidence mitigation might established jury thereby making presentation meaningless lockett progeny stand proposition state may cut absolute manner presentation mitigating evidence either statute judicial instruction limiting inquiries relevant severely evidence never part sentencing decision requirement jury unanimously find mitigating circumstances none things state final mandatory balancing stage sentencing process allow single juror control ultimate outcome simply imposes proof requirement must met evidence used mitigating factor specifically found jury whole stated saffle parks post simple logical difference rules govern factors jury must permitted consider making sentencing decision rules govern state may guide jury considering weighing factors reaching decision extreme control given one juror north carolina scheme effect allow juror alone impose capital sentence fact novel application lockett requirements intended enhance reliability jury findings dispositive description one juror veto system mills height arbitrariness supports result decide case basis alone agree justice white ante discussion lockett today opinion casts doubt evidentiary requirements presentation mitigating evidence assigning burden proof defendant requiring proof mitigating circumstances preponderance evidence opinion cases already make clear discussion lockett today opinion application beyond issue presented case concern opinion might otherwise spawned confusing capital litigation novel unsupportable lockett claims lower courts concur judgment indeed broad language today opinion might read suggest scheme requiring jury unanimity presence absence mitigating factor violate constitution requirement however enhances reliability jury decision without risk single holdout juror may impose sentence views maryland claimed unanimity requirement operated way mills surprise majority mills assumed scheme constitutional justice scalia chief justice justice join dissenting today holds eighth amendment prohibits state structuring capital sentencing scheme channel jury discretion requiring mitigating circumstances found unanimously believe holding without support either eighth amendment previous decisions dissent north carolina capital sentencing scheme defendant found guilty capital murder separate sentencing hearing held state permitted introduce evidence aggravating circumstances defendant evidence mitigating circumstances specific aggravating mitigating circumstances defined statute defendant permitted put forward mitigating circumstance wishes state must prove existence specified aggravating circumstances beyond reasonable doubt defendant must prove existence mitigating factors preponderance evidence aggravating mitigating circumstance given operative effect must found unanimously jury absent unanimity proponent circumstance failed meet burden persuasion circumstance considered proved case jury given special verdict form asked answer four questions first whether unanimously found beyond reasonable doubt one specified statutory aggravating circumstances jury answered yes respect two aggravating circumstances second whether unanimously found preponderance evidence statutory nonstatutory mitigating circumstances jury answered yes respect one statutory one nonstatutory mitigating circumstance third whether unanimously found beyond reasonable doubt mitigating circumstances found insufficient outweigh aggravating circumstances found jury answered yes fourth whether unanimously found beyond reasonable doubt aggravating circumstances found sufficiently substantial call imposition death penalty considered mitigating circumstances found jury answered yes think scheme taken whole satisfies due process eighth amendment concerns enunciated requiring jury find least one statutory aggravating circumstance north carolina adequately narrowed class murderers see zant stephens hand permitting jury consider evidence find mitigating circumstance offered defendant north carolina ensured jury able consider give effect evidence imposing sentence penry lynaugh requiring aggravating circumstances found unanimously beyond reasonable doubt mitigating circumstances found unanimously preponderance evidence north carolina reduc ed likelihood jury impose sentence fairly called capricious arbitrary gregg georgia opinion stewart powell stevens finally requiring jury unanimously find beyond reasonable doubt aggravating circumstances outweigh mitigating circumstances also sufficiently substantial light mitigating circumstances justify death penalty north carolina provided even extra measure assurance death lightly mechanically imposed ii discussing constitutional issue petitioner raises wish address briefly assertion already addressed resolved issue past decision mills clearly governs case ante although language mills maryland suggesting unanimity requirement contravene decisions lockett ohio eddings oklahoma issue plainly presented mills therefore decided opinion mills begins recounting maryland appeals dispute statute verdict form read petitioner suggested require mitigating factors found unanimously jurors improperly prevented giving due consideration mitigating evidence mills supra emphasis original state made concession brief interpretation statute proffered petitioner unconstitutional restriction existed unanimity particular mitigating circumstance required weighed determining appropriate sentence brief respondent mills maryland accordingly controversy regarding question today holds decided mills even simple reason statute raising question maryland adopted regarded saving construction statute permitting single juror view preclude rejection mitigating circumstance said verdict form understood fashion critical question question disputed parties whether petitioner interpretation sentencing process one reasonable jury drawn instructions given trial judge verdict form employed case mills answer question divided five justices found substantial risk jury understood instructions requiring reject mitigating circumstances failed find unanimously state understood necessary consequence finding vacated judgment remanded proceedings four dissenting justices thought risk reasonable jury misunderstood instructions negligible thus affirmed rehnquist dissenting characterization mills holding instructions interpreted require unanimity unconstitutional ante strik ing maryland scheme ante pure revisionism maryland scheme existed except one authoritatively described maryland appeals see mullaney wilbur require unanimous finding mitigation defendant receive life sentence sure mills contains language suggesting unanimity requirement contravene lockett eddings see mills circumstances suggestions plainly dicta doubt resolved justice white separate concurrence entirety issue case reasonable jurors understood applied instructions issue opinion addresses persuaded reaches correct solution hence join opinion iii constitutional issue conceded mills presented contested present case north carolina capital sentencing statute unambiguously provides mitigating circumstances must found jury unanimously finds scheme constitutionally defective prevents individual jurors giving effect evidence believe calls sentence less death ante citing eddings lockett internal quotations omitted juror answers ultimately dispositive issues three four take account mitigating circumstances found jury unanimously issue two thus juror concludes defendant proved additional mitigating circumstances precluded colleagues disagreement giving conclusion effect several times refers prospect one holdout juror prevent reaching decision wish ante reader misled constitutional principle appealed majority rule opposite according north carolina system one juror prevent others giving effect mitigating circumstance invalid constitution requires context north carolina statute system one juror prevent others denying effect mitigating circumstance holdout juror scenario provides attractive atmosphere alleged constitutional principle upon decision rests juror must permitted consider give effect mitigating evidence deciding ultimate question whether vote sentence death ante emphasis added may foreclosed one jurors failure ante emphasis added find mitigating facts existed existing facts mitigating scheme least statute requires jury recommendation death unanimous single juror finding regarding existence mitigation must control asserted demanded principle established lockett ohio sentencer may precluded giving effect mitigating evidence ante respect principle established lockett remotely support conclusion lockett vacated death sentence imposed statute limited sentencing judge consideration mitigating factors three statutory circumstances plurality reasoned eighth fourteenth amendments require sentencer rarest kind capital case precluded considering mitigating factor aspect defendant character record circumstances offense defendant proffers basis sentence less death opinion burger emphasis omitted footnotes omitted similarly eddings also relied upon vacated death sentence sentencing judge refused consider evidence proffered defendant unhappy upbringing reasoned state may statute preclude sentencer considering mitigating factor neither may sentencer refuse consider matter law relevant mitigating evidence emphasis original accord penry lynaugh failure instruct texas jury consider give effect mitigating evidence beyond scope three statutory special issues inconsistent lockett eddings hitchcock dugger trial judge belief florida law prohibited consideration nonstatutory mitigating circumstances corresponding instruction jury contravened lockett skipper south carolina trial judge failure permit jury consider evidence defendant good behavior prison inconsistent lockett eddings principle established cases state may preclude sentencer considering giving effect evidence relevant mitigating circumstance proffered defendant see penry supra sentencer must able consider give effect mitigating evidence imposing sentence emphasis added hitchcock supra sentencer may refuse consider precluded considering relevant mitigating evidence internal quotations omitted citations omitted emphasis added eddings supra mitigating evidence may excluded sentencer consideration emphasis added eddings supra sentencer may refuse consider relevant mitigating evidence emphasis added lockett supra eighth fourteenth amendments require sentencer precluded considering mitigating evidence emphasis added omitted sentencer case north carolina jury precluded considering giving effect mitigating circumstances petitioner complains limitation upon sentencer allowed give effect rather limitation upon manner allowed unanimously observes today crucial distinction simple logical difference rules govern factors jury must permitted consider making sentencing decision rules govern state may guide jury considering weighing factors reaching decision saffle parks post emphasis added holding rule invalidating antisympathy instruction new rule teague lane concluded lockett eddings speak directly jury must consider mitigating evidence opposed mitigating evidence jury must permitted consider making sentencing decision saffle post accord franklin lynaugh plurality opinion never suggested jury consideration mitigating evidence must undirected unfocused short lockett eddings quite simply irrelevant question us pressed service describing establishing sentencer reader invited understand individual member jury may precluded giving effect mitigating evidence ante emphasis added iv nothing prior cases supports rule announced since even purport rely upon constitutional text traditional practice nothing remains support result moreover affirmative indications prior cases north carolina done constitutional indications compelling perverse reason less support exists constitutional claim less likely claim raised taken seriously hence less likely previously rejected petitioner seek reversal sentence two jurors wearing green shirts impossible say anything claim except nothing said neither text tradition jurisprudence point already made alone suffices caution however entirely superfluous may mention several aspects jurisprudence appear contradict result begin never invalidated requirement approved schemes imposing requirement contexts great importance criminal defendant example condition establishing defense capital murder case see martin ohio ohio rev code ann ohio rule crim proc condition establishing defense extreme emotional disturbance murder case see patterson new york crim proc law mckinney condition establishing defense insanity murder case see rivera delaware del super crim rule del code vol course holding today underlying thesis individual juror must empowered give effect view invalidates requirement unanimity defendant benefit mitigating factor requirement number jurors one thus also tension leland oregon upheld capital case requirement defense insanity proved beyond reasonable doubt satisfaction least jury even respect proof substantive offense opposed affirmative defense approved verdicts less unanimous jury see apodaca oregon upholding state statute providing conviction vote sure found criminal verdict less jury unconstitutional however inherent vice nonunanimity verdict less verdict see ballew georgia presents threat preservation substance jury trial guarantee burch louisiana discusses briefly one cases patterson said state chooses recognize factor mitigates degree criminality punishment state may assure fact established reasonable certainty distinguishes case presumably distinguish rest cited follows constitution requires allow consideration mitigating evidence capital cases barrier consideration must therefore fall ante surely constitution also requires allow consideration evidence bearing upon substantive criminal offense consideration evidence bearing upon affirmative defenses contexts regarded barrier consideration require unanimity single juror evaluation evidence given effect defendant advantage understand comparable requirement constitutes barrier consideration mitigation latter context assuring reasonable certainty longer legitimate objective likewise incompatible theory principle guided discretion previously held essential validity capital sentencing said must channel sentencer discretion clear objective standards provide specific detailed guidance make rationally reviewable process imposing sentence death godfrey georgia plurality opinion footnotes omitted little guidance system requires individual juror bring ultimate decision idiosyncratic notion facts mitigating untempered discipline group deliberation agreement today thought north carolina scheme model guided discretion requirement jury determine four specific issues operates like special verdict device long recognized enhancing reliability rationality jury determinations see sunderland verdicts general special yale moreover enabling reviewing examine specific findings underlying verdict facilitates appellate review described important additional safeguard arbitrariness caprice gregg georgia opinion stewart powell stevens sentencing authority required specify factors relied upon reaching decision safeguard meaningful appellate review available ensure death sentences imposed capriciously freakish manner accord zant stephens proffitt florida opinion stewart powell stevens strikes eminently reasonable scheme quality substitutes conveniently evaluated considering future north carolina juries behave doomsday hypothetical jurors believe defendant proved one mitigating circumstance believes different one ante jury course collection individuals asked separately independent views body designed deliberate decide collectively see williams florida sixth amendment requires jury large enough promote group deliberation ballew georgia jury small opinion blackmun small juries impede group deliberation today decision hypothetical posed quite impossible north carolina sentencing juries deliberate dispositive questions issues three four whether aggravating circumstances outweigh mitigating circumstances whether light mitigating circumstances aggravating circumstances justify death two jurors agree identity mitigating circumstances juror must presumably decide splendid isolation basis uniquely determined mitigating circumstance whether death imposed supposed jury trial degenerated poll seems inconceivable system tolerated constitution constitutionally prescribed sum constitutional prohibition asserted petitioner decided mills supported lockett eddings since nothing else adduced support basis believing exists moreover contrary constitutional principles governing jury trial contexts contrary principle guided discretion launched modern incursion field capital sentencing destructive sound jury deliberation abandon text tradition addition restrict prior cases holdings knowing observing law land becomes impossible state officials sworn uphold constitution expound rush comply one newly designed precepts told complying violated another one points opposite direction compare furman georgia invalidating discretionary death penalty woodson north carolina invalidating mandatory death penalty enacted light furman dissent today decision unpredictable jurisprudence capital sentencing represents justice blackmun contends state defend ed appeals judgment alternative ground even reasonable jury might read instructions requiring unanimous finding mitigating factor considered requirement contravene dictates lockett eddings ante presumably defense gone somewhat follows even though appeals authoritatively determined maryland law entitled defendant jury instruction requiring life sentence single juror found sufficient mitigation even though petitioner contends instruction mistakenly required unanimity mitigation must nevertheless uphold death sentence even though maryland law fact require unanimity requiring unconstitutional single passage justice blackmun relies upon state brief support unlikely proposition state made previously described argument plainly addressing constitutionality erroneous instruction petitioner asserted given instruction provided maryland law interpreted appeals clear discusses constitutionality requiring unanimity rejection mitigating circumstance brief respondent mills emphasis added appeals theory maryland law required whereas petitioner argued instruction actually given required mitigating circumstance rejected even single juror objected quoted passage appears moreover section brief entitled maryland appeals interpretation statutory scheme constitutional emphasis added subdivision part brief entitled maryland capital punishment statute interpreted maryland appeals permits full consideration evidence presented mitigation sentence emphasis added justice blackmun correct state kirkley cited proposition trial instructions interpreted mills maryland law provided instructions constitutional fact maryland brief cited limited point unanimity requirements law interpreted appeals acceptance rejection mitigation automatic life sentence event deadlock interfere consideration evidence thus reason violate lockett eddings brief respondent mills finally justice blackmun correct state sought defend constitutionality mills interpretation scheme one expected state least mentioned significant point oral argument justice blackmun citation cases decided issue argued ante irrelevant deciding argued quite different deciding presented situation mills merely one spoke defense constitutionality statute similar one us even merely one interest speak defense constitutionality statute irrelevant outcome case statute presented facts maryland appeals interpreted statute differently extraordinary suggest pronounce authoritatively upon constitutionality statute exist justice blackmun meaning majority opinion found within opinion gloss individual justice chooses place upon authoritative ante certainly true individual justice needed majority begs question opinion majority opinion except extent accords views writes gloss least common denominator sure separate writing add majority opinion holds binding four justices said assuredly narrow majority opinion holds explaining limited interpretation adopted necessary member majority author opinion finds glossator says inconsistent understanding opinion may certainly decline outset opinion show justice joining glossator nonetheless insists upon purporting join suppose author explicitly disclaim company never heard asserted four justices power fabricate majority binding fifth interpretation say even though writes separately explain narrow understanding justice blackmun finds analogy affirmative defenses less persuasive says clear jury failure agree affirmative defense results conviction rather hung jury ante interesting know basis doubt respect jurisdictions cited new york law example jury verdict whether guilty guilty must unanimous see crim proc law mckinney affirmative defense raised must carefully instruct jury must satisfied defendant guilt offense beyond reasonable doubt may consider affirmative defense practice commentary following penal law mckinney see people morris app div jur criminal law pp uilt must established beyond reasonable doubt jury even consider affirmative defense jurors follow instructions appear jury considered unanimously found affirmative defense must return verdict guilty one wonders proportion jury justice blackmun believes necessary find affirmative defense law explicitly specify majority justice blackmun believes grotesque distortion normal jury deliberations blamed upon rule today announces rather north carolina fault scheme adopted represents extraordinary departure way juries customarily operate ante typically points juries called upon render unanimous verdicts ultimate issues given case general requirement jury reach agreement preliminary factual issues underlie verdict ibid sort argument causes state legislators pull hair general verdict course usual practice pushed special verdicts capital sentencing field intimated requiring sentencing authority specify factors relied upon reaching decision may necessary ensure meaningful appellate review death sentences imposed capriciously freakish manner gregg georgia opinion stewart powell stevens disparaging practice least encouraged indeed coerced gives new substance charge administering bait switch capital sentencing jurisprudence