¶1dissenting.
¶2I join in the dissenting opinions of Justice Martin and Justice Frye. I also dissent from the majority’s position that Mills v. Maryland, 486 U.S. ---, 100 L.Ed. 2d 384 (1988), does not require us to overrule State v. Kirkley, 308 N.C. 196, 302 S.E. 2d 144 (1983), overruled in part on other grounds, State v. Shank, 322 N.C. 243, 367 S.E. 2d 639 (1988); and I write separately in support of my position that Millsdoes require us to overrule Kirkleyand its progeny.
¶3In Kirkleythe question arose for the first time in this jurisdiction as to whether a jury in a capital sentencing proceeding must agree unanimously that a mitigating circumstance existed in order to consider that circumstance in the ultimate determination of whether the defendant should live or die. At the sentencing phase of Kirkley’s trial the unanimity issue was not addressed in the trial court’s initial jury instructions. After some deliberation the jury returned to the courtroom to ask specifically whether it must agree unanimously on each mitigating circumstance before it could continue to consider that circumstance in determining whether to impose death or life imprisonment. The trial court instructed the jury that it must unanimously agree on *50each mitigating circumstance before it could continue to consider it in the ultimate balancing process. A majority of this Court in Kirkleyheld, contrary to the position of both the defendant and the state, that there was no error in the trial court’s supplemental instructions on the unanimity question, saying, “Certainly consistency and fairness dictate that a jury unanimously find that a mitigating circumstance exists before it may be considered for the purpose of sentencing.” Kirkley, 308 N.C. at 218, 302 S.E. 2d at 157.
¶4Dissenting on this issue in Kirkley, I adopted essentially what was then the state’s position. The state in its brief in Kirkleysaid:
Lockett v. Ohio, 438 U.S. 586 [57 L.Ed. 2d 973] (1978), holds that a statute that prevents the sentencer in all capital cases from giving independent weight to aspects in mitigation creates a risk that a death penalty will be imposed in spite of factors which call for a less severe penalty and thus is unconstitutional. It would seem manifestly improper, then, not to permit members of a jury to consider a factor in mitigation simply because all members of the jury were not satisfied with the defendant’s showing concerning a particular mitigating circumstance. It would also make any sentencing procedure unmanageable if each time a jury deadlocked on an issue a new sentencing hearing was required.
It is the State’s position that only those mitigating circumstances found unanimously to. exist should be listed on the verdict sheet recommended in State v. Rook, 304 N.C. 201, 283 S.E. 2d 732 (1981), cert. denied, 455 U.S. 1038 [72 L.Ed. 2d 155] (1982). However, no juror should he precluded from considering anything in mitigation in the ultimate balancing process even if that mitigating factor was not agreed upon unanimously. To do otherwise, the State believes, could run afoul of Lockett v. Ohio, supra.
¶5Kirkley, 308 N.C. at 229, 302 S.E. 2d at 163 (emphasis supplied). I wrote in my Kirkleydissent:
While the state’s position on this question might pass constitutional muster, I think the better practice would be to instruct: (1) unanimity is not required in order to answer the *51question of the existence of a mitigating circumstance favorably to defendant; (2) such an issue should be answered unfavorably to defendant only if all jurors agreed to so answer it; (3) such an issue should be answered favorably to defendant if any juror would so answer it with an indication on the verdict form as to how many jurors so voted; and (4) in the final balancing process each juror would be free to consider only those mitigating circumstances which he or she were persuaded existed in the case.
¶6Kirkley, 308 N.C. at 229-30, 302 S.E. 2d at 163. I still adhere to this position.
¶7Despite the majority’s valiant effort to explain Millsaway, the Millsholding cannot be reconciled with our Kirkleyholding on the unanimity question. Instead the Millsholding squarely sustains the position both the state and I took in Kirkleyon this issue. Whatever escape from the Millsholding might be provided by differences in Maryland’s and North Carolina’s capital sentencing scheme or by the posture in which the Millscase reached the Supreme Court is effectively closed, it seems to me, by the rationale of the Millsdecision as expressed in the opinion itself.
¶8The majority correctly identifies the Millsholding: Jury instructions in a capital sentencing proceeding which create “a substantial probability that reasonable jurors . . . may well have thought that they were precluded from considering any mitigating evidence unless all 12 jurors agreed on the existence of a particular such circumstance” are constitutionally infirm under the Supreme Court’s Eighth Amendment jurisprudence. Mills, 486 U.S. at ---, 100 L.Ed. 2d at 400. Our Kirkleyholding is precisely to the contrary and should, therefore, yield.
¶9The majority chooses instead to distinguish Millson the basis of two circumstances urged upon this Court by the state as legally material differences.
¶10The first difference suggested is that in Maryland a capital sentencing jury which finds at least one aggravating circumstance and fails to find any mitigating circumstances never engages in a balancing process and must return a sentence of death. In North Carolina even if one or more aggravating circumstances and no mitigating circumstances are found, the jury may nevertheless *52elect not to impose the death penalty on the basis that the aggravating circumstances are themselves not sufficiently substantial to call for its imposition.
¶11Relying on this difference in the two states’ sentencing schemes as justification for continuing our Kirkleyunanimity requirement ignores the rationale underlying the Millsholding as it is explained in the Millsopinion. It is true that the Supreme Court in Millswas concerned that a single holdout juror in Maryland on mitigating circumstances might force the imposition of the death penalty. The last substantive sentence of the Millsopinion is, “[t]he possibility that a single juror could block [consideration of mitigating evidence], and consequently require the jury to impose the death penalty, is one we dare not risk.” Mills, 486 U.S. at ---, 100 L.Ed. 2d at 400. Indeed, in Millsthe jury found the one aggravating circumstance submitted, found none of the several mitigating circumstances submitted and on that basis returned a sentence of death.
¶12In Maryland, however, a jury finding one or more aggravating circumstances to exist and one or more mitigating circumstances to exist would then balance the conflicting sets of circumstances by determining whether the mitigating circumstances outweigh the aggravating. In this situation the Maryland sentencing scheme is indistinguishable in principle from North Carolina’s.
¶13In North Carolina when both mitigating and aggravating circumstances are found the jury must determine whether the mitigating circumstances are insufficient to outweigh the aggravating. If they are insufficient, then the aggravating circumstances must be considered with the mitigating circumstances and found to be sufficiently substantial to warrant imposition of the death penalty. In both balancing processes only those mitigating circumstances found to exist by all twelve jurors can be considered. Eleven jurors are prevented from considering mitigating circumstances they might wish to consider in these final balancing processes if the one remaining juror refuses to do so. This amounts to contradicting Millsby unconstitutionally precluding jurors in North Carolina from considering mitigating circumstances when they ultimately determine whether to impose the death penalty.
¶14*53The Millsrationale as expressed in the opinion leads inescapably to the conclusion that its holding would apply to a Maryland case whether the jury found no mitigating circumstance or at least one but not all the mitigating circumstances submitted to it. Since in this situation Maryland’s capital sentencing scheme is no different from North Carolina’s, it must follow that the Millsholding applies equally to North Carolina’s capital sentencing scheme.
¶15The Eighth Amendment jurisprudence upon which Millsrests is that in a capital case the sentencing authority may not be precluded from considering any relevant mitigating circumstance which might be proffered by the defendant as reasonably justifying a sentence other than death. Skipper v. South Carolina, 476 U.S. 1, 4, 90 L.Ed. 2d 1 (1986); Eddings v. Oklahoma, 455 U.S. 104, 110, 71 L.Ed. 2d 1 (1982); Lockett v. Ohio, 438 U.S. 586, 604, 57 L.Ed. 2d 973 (1978). This jurisprudence is summarized at the outset of the substantive discussion in Mills. Mills, 486 U.S. at ---, 100 L.Ed. 2d at 393-94. Later in its opinion the Supreme Court posits a Maryland capital sentencing process under which the jury actually reaches the balancing stage, saying:
Ordinarily, a Maryland jury reaches the balancing stage of the deliberation process any time it unanimously finds at least one mitigating circumstance, or, under the interpretation adopted by the Court of Appeals in this case, any time the jury does not unanimously reject all mitigating circumstances. Had the jurors that sentenced petitioner reached Section III, they would have found that even if they had read the verdict form as the Court of Appeals suggests they could have, and marked “yes” or “no” only on the basis of unanimity as to either, they were not free at this point to consider all relevant evidence in mitigation as they balanced aggravating and mitigating circumstances. Section III instructed the jury to weigh only those mitigating circumstances marked “yes” in Section II. Any mitigating circumstance not so marked, even if not unanimously rejected, could not be considered by any juror. A jury following the instructions set out in the verdict form could be “precluded from considering, as a mitigating factor, [an] aspect of a defendant’s character or record [or] a circumstance] of the offense that the defendant proffer[ed] as a basis for a sentence less than death,” *54Skipper v. South Carolina, 476 U.S. at 4, 90 L.Ed. 2d 1, 106 S.Ct. 1669, if even a single juror adhered to the view that such a factor should not be so considered.
¶16Mills, 486 U.S. at ---, 100 L.Ed. 2d at 397 (footnote omitted). Footnote 14 presses the point further:
For example, some jurors in this case might have found that petitioner’s age, 20, constituted a mitigating factor, i.e., youthfulness, under § 413(g)(5). Indeed, in his sentencing report the trial judge noted: “There was evidence from which the jury could have found the existence of Mitigating Circumstance No. 5 (youthful age).” App. 108. Other jurors, on the other hand, might have accepted the prosecutor’s argument that petitioner was “not youthful in terms of the criminal justice system,” id., at 79, because of his history of criminal activity. Under such circumstances, the lack of unanimity would have prevented the jury from marking that answer “yes.” Regardless of whether the answer was marked “no” or left blank, the instructions in Section III would prevent those jurors who thought petitioner’s youthfulness was relevant to the ultimate sentencing decision from giving that mitigating circumstance any weight.
¶17Mills, 486 U.S. at ---, 100 L.Ed. 2d at 397-98 n.14.
¶18The majority next attempts to distinguish Millson the basis of the posture in which that case reached the Supreme Court. The majority notes that the Maryland Court of Appeals in its Millsopinion and the State of Maryland before the United States Supreme Court both conceded that mitigating evidence continued to be legally relevant even if the jury does not unanimously find it to have mitigating value; but in North Carolina such evidence ceases to be legally relevant if rejected by even one juror.
¶19This argument stands Millsand the Eighth Amendment jurisprudence upon which it rests on their respective heads. The jurisprudence so far developed by the Supreme Court in a series of cases to which I have already referred is that the Eighth and Fourteenth Amendments preclude a state from creating barriers to the consideration by a capital sentencer of all evidence which may reasonably be said to have mitigating value. It makes no dif*55ference what form these barriers take. The Supreme Court said unequivocally in Mills:
Under our decisions, it is not relevant whether the barrier to the sentencer’s consideration of all mitigating evidence is interposed by statute, Lockett v. Ohio, supra; Hitchcock v. Dugger, 481 U.S. ---, 95 L.Ed. 2d 347, 107 S.Ct. 1821 (1987); by the sentencing court, Eddings v. Oklahoma, supra; or by an evidentiary ruling, Skipper v. South Carolina, supra. The same must be true with respect to a single juror’s holdout vote against finding the presence of a mitigating circumstance. Whatever the cause, . . . the conclusion would necessarily be the same: “Because the [sentencer’s] failure to consider all of the mitigating evidence risks erroneous imposition of the death sentence, in plain violation of Lockett, it is our duty to remand this case for resentencing.” Eddings v. Oklahoma, 455 U.S. at 117, n*, 71 L.Ed. 2d 1, 102 S.Ct. 869 (O’Connor, J., concurring).
¶20Mills, 486 U.S. at ---, 100 L.Ed. 2d at 394 (emphasis supplied).
¶21“[I]t is universally recognized that evidence, to be relevant to an inquiry, need not conclusively prove the ultimate fact in issue, but only have ‘any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.’ ” New Jersey v. T.L.O., 469 U.S. 325, 345, 83 L.Ed. 2d 720, 737 (1985), quoting Fed. R. Evid. 401. As noted by Thayer, “The law furnishes no test of relevancy.” E. Thayer, A Preliminary Treatise on Evidence at the Common f/aw 265 (1898). The concept of logical relevancy employed in Rule 401 must be kept separate from issues of sufficiency of evidence for any purpose such as to satisfy a burden of production. M. Graham, Handbook of Federal Evidence § 401.1 (2d ed. 1986). This concept of relevancy is the same in the context of mitigating evidence in a capital sentencing proceeding as it is in other contexts. Relevant mitigating evidence is evidence which tends logically to prove or disprove some fact or circumstance which a fact-finder could reasonably deem to have mitigating value. Whether the fact-finder accepts or rejects the evidence has no bearing on the evidence’s relevancy. The relevance exists even if the fact-finder fails to be persuaded by that evidence. It is not necessary that the item of evidence alone *56convinces the trier of fact or be sufficient to convince the trier of fact of the truth of the proposition for which it is offered. Id. at § 401.1 n.12.
¶22To say, as the majority here does, that jury unanimity on a mitigating factor is necessary to make that factor legally relevant in the final balancing process seems not only to be a misuse of the concept of relevancy but also a classical case of circular reasoning with regard to the constitutional question presented. When the Supreme Court speaks in Millsof the constitutional necessity for permitting the sentencer in a capital case to “consider” all mitigating evidence in determining whether to impose or not to impose the death penalty, it clearly has reference to that stage of the process where the final sentencing decision is being made. It is at that stage where under Millsand its predecessors any juror must not be precluded from considering evidence that juror might reasonably believe to have mitigating value. It is not enough that the juror be permitted to “consider” the mitigating evidence at the point when the jury is trying to determine whether any particular mitigating circumstances exist. There is no question that all jurors were permitted to consider such evidence at that stage of the process in Mills.
¶23Rather, the question presented in Millsis whether at the ultimate decision-making stage of a capital sentencing proceeding it is constitutionally permissible to preclude any juror from considering a mitigating circumstance that juror believes to exist because not all jurors agree on its existence. Millsanswers that question “no.” It also makes clear that the question must be answered “no” notwithstanding any procedural devices a state may employ to preclude the sentencer’s consideration of mitigating factors at the ultimate decision-making stage. This means to me that North Carolina cannot preclude jurors from considering mitigating evidence at that stage by labeling the evidence legally irrelevant.
¶24The majority relies in part on Franklin v. Lynaugh, --- U.S. ---, 101 L.Ed. 2d 155 (1988), for the proposition that it is permissible for states to structure, direct and focus the jury’s consideration of mitigating evidence. Guiding and structuring the jury’s consideration of mitigating evidence is one thing; precluding the jury’s consideration of such evidence at the final decision-making *57stage is quite another. Lynaughpermits the former; Millsprohibits the latter. Indeed, the Supreme Court concluded the instructions in Lynaughwere not constitutionally infirm “[b]ecause we do not believe that the jury instructions or the Texas Special Issues precluded jury consideration of any relevant mitigating circumstances in this case, or otherwise unconstitutionally limited the jury’s discretion . . . .” Lynaugh, --- U.S. at ---, 101 L.Ed. 2d at 171.
¶25Because the majority’s reliance on the Supreme Court’s denial of certiorari in two North Carolina cases in which the Millsissue was raised is sparing and properly carries with it the recognition that such denials mean nothing with regard to the Court’s views on the merits of the case, I see little need to respond to this aspect of the majority’s opinion. Suffice it to say that, according to the authorities cited by the majority, the Supreme Court’s position on the issue of the unanimity requirement vis-a-vis mitigating circumstances in a capital sentencing procedure should be determined entirely from its holding and its analysis in Millsand not at all from its denials of applications for writs of certiorari in cases in which this issue might have been raised.
¶26dissenting.
¶27Believing that the defendant has not received a fair and impartial trial, I dissent from the majority’s decision in both the guilt-innocence and sentencing phases of the trial. First, I am convinced that under the totality of the circumstances, defendant’s oral confession was not knowingly and voluntarily made and, for that reason, its admission in evidence against him was error. These circumstances are set out in some detail in the dissenting opinion of Justice Martin in which he concludes that the defendant is entitled to a new trial. I concur in that portion of his opinion.
¶28I also conclude that the defendant is entitled to a new sentencing hearing as stated in the dissenting opinion of the Chief Justice for the reasons stated in his dissenting opinion.
¶29I write separately because I disagree with the majority’s treatment of two other issues which bear directly upon the guilt-*58innocence phase of the trial and indirectly, if not directly, upon the jury’s determination of whether the defendant should receive life imprisonment or the death penalty. My first difference with the majority relates to its treatment of the fact that both the trial court and the prosecutor informed the jury that the trial was subject to appellate review.
¶30Defendant argued that the fact that both the trial court and the district attorney informed the jury that defendant’s trial was subject to appellate review constitutes reversible error; that conveying that information to the jury fatally undermined the reliability of the jury’s determination that defendant was guilty of murder in the first degree and the jury’s conclusion that death was the appropriate punishment. The majority responds by reviewing this Court’s decisions in State v. White, 286 N.C. 395, 211 S.E. 2d 445 (1975), and State v. Jones, 296 N.C. 495, 251 S.E. 2d 425 (1979), and the United States Supreme Court’s decision in Caldwell v. Mississippi, 472 U.S. 320, 86 L.Ed. 2d 231 (1985), concluding that those cases
stand for the proposition that statements by the trial court or prosecutor that tend to dilute the jury’s sense of responsibility for its determinations by suggesting that its verdict will be reviewed, or that the punishment imposed will be withheld, are impermissible and prejudicial. See 75 Am. Jur. 2d Trial § 230 (1974) (‘[comments ... on the power of the court to suspend sentence or to set the jury’s verdict aside, or statements that a higher court has the power to review the finding of the jury on the weight of the evidence, are calculated to induce the jury to disregard their responsibility, and are improper.’).
¶31The majority then proceeds to distinguish the above cases from the instant case. I find those cases controlling. In White, the prosecutor told the jury that “[if] any error is made in this court, [the Supreme] Court will say.” White, 286 N.C. at 402, 211 S.E. 2d at 449. Here, the prosecutor argued, “[t]here is a right of appeal to any interpretation of laws and application of laws which are present in this case.”
¶32Further, in Whitethe court stated to the jury that “the Supreme Court will review this case.” Id. at 402, 211 S.E. 2d at 449. This Court concluded that by that “positive statement . . . *59the jury was bound to have understood that the court assumed [that] their verdict would be guilty.” Id. at 404, 211 S.E. 2d at 450-51. Here, the judge told the jurors that the court reporter
will be taking down everything that’s said or done during the trial so that everything is a matter of public record and then she can type up a transcript of a trial and they mail it down to the Supreme Court and the Supreme Court can review what we’re doing up here in Stanly County.
¶33The majority draws a distinction between the use of the words “will review” in Whiteand “can review” in the instant case. The distinction, in context, is too fine. As this Court made clear in White, a jury in a capital case must weigh the evidence and find the facts on the assumption that whatever verdict they render will be the final disposition of the case. When the judge tells the jurors that the court reporter is taking everything down so that it is a matter of public record, that it will be mailed down to the Supreme Court so that the Supreme Court can review “what we’re doing up here in Stanly County,” reasonable jurors could easily believe, as stated by this Court, in State v. Jones, 296 N.C. 495, 500, 251 S.E. 2d 425, 428, “that the Supreme Court would share with them a burden and responsibility which was in fact their sole responsibility.” This belief is further encouraged when the court overrules defendant’s objection to the prosecutor’s argument that if convicted deféndant can appeal on points of law. As Chief Justice Sharp intimated in White, jurors may not fully comprehend “the nature of the Supreme Court’s review of a case upon appeal and . . . the difference between ‘triers of the facts’ and judges of the law.” White, 286 N.C. at 404, 211 S.E. 2d at 450. Here, the trial judge both directly told the jury that its verdict was subject to appellate review and, subsequently, sanctioned the State’s comments on that subject by overruling defendant’s timely objection. Given those facts and the prior holdings of this Court, defendant’s conviction and sentence of death should be vacated and this case remanded for a new trial.
¶34I also disagree with the majority’s treatment of defendant’s contention that the trial court erred by allowing the prosecutor, during voir dire, to “stake out” the jurors by obtaining commitments from them to disregard defendant’s intoxication in determining the existence of premeditation and deliberation and to *60reject his voluntary intoxication defense. The purpose of voir dire examination of prospective jurors is to secure an impartial jury. State v. Banks, 295 N.C. 399, 245 S.E. 2d 743 (1978). To assure that end, this Court has repeatedly held it improper for counsel to “stake out” jurors during voir dire by posing hypothetical questions designed to elicit in advance what a juror’s decision will be under a certain state of evidence or upon a given state of facts. See, e.g., State v. Rogers, 316 N.C. 203, 341 S.E. 2d 713 (1986); State v. Avery, 315 N.C. 1, 337 S.E. 2d 786 (1985); State v. Phillips, 300 N.C. 678, 268 S.E. 2d 452 (1981); State v. Vinson, 287 N.C. 326, 215 S.E. 2d 60 (1975), modified as to death penalty, 428 U.S. 902, 49 L.Ed. 2d 1206 (1976).
¶35The prosecutor asked the prospective jurors “if it is shown to you from the evidence and beyond a reasonable doubt that the defendant was intoxicated at the time of the alleged shooting, would this cause you in your opinion to have sympathy for him and allow that sympathy to affect your verdict?” The jurors assured the prosecutor that they would not let that fact influence their decision. Further, at the sentencing stage, the prosecutor stated “he was drinking liquor and I told you before you were chosen as a juror that if it is shown that he’s intoxicated, were you going to have sympathy, sympathetic to his cause. As I recall, you said you wouldn’t.”
¶36Allowing the prosecutor to seek and obtain commitments from the jurors was tantamount to asking them to ignore evidence of intoxication in reaching their verdict and in determining the appropriate sentence. The evidence of defendant’s intoxication was overwhelming. Deputy Sheriff Lambert went to defendant’s home in response to a report that defendant was drunk and firing a shotgun. Deputy Lambert testified that defendant would mumble but he could not understand him and that defendant, though standing, was “wobbly.” The emergency room physician testified that defendant had a strong odor of alcohol, did not respond coherently to the doctor’s questions, and, notwithstanding a laceration to his skull and a wound to his left buttocks, did not complain of any pain and was not given any medication for pain. Defendant had a blood alcohol level of .264 shortly after the shooting. Dr. Robert Rollins, clinical director of the Dorothea Dix forensic psychiatry unit, included among defendant’s diagnoses: “episodic alcohol abuse,” “alcohol intoxication, recovered,” and *61“organic delusional syndrome.” In Dr. Rollins’ professional opinion, defendant could not distinguish between right and wrong at the time of the offense and could not have formed the specific intent to kill the officer. In the opinion of Dr. Patricio Lara, another Dorothea Dix Hospital psychiatrist who also examined defendant, his intoxication, together with his limited intellectual functioning and personality disorder, resulted in an impairment of his ability, at the time of the offense, to conform his conduct with the requirements of the law.
¶37Intoxication, even when voluntary, may constitute a valid defense to the charge of murder in the first degree. See, e.g., State v. Lowery, 309 N.C. 763, 309 S.E. 2d 232 (1983) (if defendant was intoxicated to a degree precluding premeditation and deliberation, he cannot be found guilty of murder in the first degree); State v. Medley, 295 N.C. 75, 243 S.E. 2d 374 (1978) (defendant cannot be convicted of murder in the first degree if intoxicated to a degree sufficient to preclude forming a specific intent to kill).
¶38This Court has held that “[a] juror who reveals that he is unable to accept a particular defense or penalty recognized by law is prejudiced to such an extent that he can no longer be considered competent.” State v. Leonard, 296 N.C. 58, 62-63, 248 S.E. 2d 853, 855 (1978). Thus, permitting defendant to be tried for his life by a jury whose members had expressly committed themselves to disregard what proved to be substantial evidence that defendant was highly intoxicated at the time the fatal shot was fired infringed upon his fundamental right to be tried by an impartial jury.
¶39As stated by the Supreme Court of Mississippi in Stringer v. State, 500 So. 2d 929 (1986):
It is improper influence to put the jury in a ‘box’ by voir dire tactics which extract a promise, prior to trial, to ignore evidence favorable to the defendant. This promise or pledge prevents the jurors from considering all facts relevant to the verdict. The jurors are then called upon during closing arguments to fulfill that promise, and the effect — whether calculated or not — is to shame or coerce the jury into rejecting factors which would tend to mitigate against the death penalty-
¶41*62For all of the reasons indicated herein, and for the reasons set forth in the dissenting opinion of Justice Martin, defendant should be given a new trial. Even if his conviction is upheld, he should be given a new sentencing hearing for the reasons stated in the dissenting opinion of the Chief Justice.
¶42Proportionality
¶43Because I do not believe that defendant has received a fair trial free of prejudicial error, I would not reach the question of proportionality. However, since the majority reaches that question and finds that the death sentence is not disproportionate in this case, I write to express my disagreement with that conclusion also.
¶44As the majority correctly states, in conducting proportionality review, we “determine whether the death sentence in this case is excessive or disproportionate to the penalty imposed in similar cases, considering the crime and the defendant.” State v. Brown, 315 N.C. 40, 70, 337 S.E. 2d 808, 829 (1985). There are four cases in the proportionality pool in which defendants killed law enforcement officers engaged in the performance of their official duties. Those cases are: State v. Payne, 312 N.C. 647, 325 S.E. 2d 205 (1985), State v. Hill, 311 N.C. 465, 319 S.E. 2d 163 (1984); State v. Abdullah, 309 N.C. 63, 306 S.E. 2d 100 (1983), and State v. Hutch-ins, 303 N.C. 321, 279 S.E. 2d 788 (1981).
¶45In Payne, defendant murdered a detective who had earlier arrested him on a drug charge. He handcuffed the detective’s hands behind his back and pushed him into a river to drown. The jury returned a verdict of life imprisonment. In Hill, a policeman chased and tackled the defendant who was suspected of having committed a felony. During the ensuing struggle, defendant managed to get possession of the officer’s pistol and shot and killed him. This Court found the death sentence disproportionate and sentenced defendant to life imprisonment. In Abdullah, defendant conspired with others to commit an armed robbery and shot the policeman several times during the course of the robbery, killing him. The jury returned a verdict of life imprisonment. In Hutch-ins, the defendant shot and killed two officers and then shot and killed a third officer who was attempting to arrest him. This Court upheld the sentence of death.
¶46*63When considering the crime and the defendant and comparing this case with the crime and the defendants in the other four cases involving the killing of law enforcement officers, I find the instant case more like Abdullah, Hill, and Paynethan Hutchins. Thus, I agree with defendant that to conclude that he deserves to die, when the defendants in Abdullah, Payne, and Hillwere spared that ultimate penalty, would defeat the purpose of proportionality review mandated by the legislature, which, as this Court stated in State v. Jackson, 309 N.C. 26, 46, 305 S.E. 2d 703, 717 (1983), “is to serve as a check against the capricious or random imposition of the death penalty.” Thus, were I to reach proportionality, I would find the death sentence in the instant case disproportionate as a matter of law and sentence defendant to life imprisonment.
¶47dissenting in part.
¶48I respectfully dissent from the holding of the majority that defendant’s inculpatory statements were admissible; otherwise, I concur in the majority opinion, including specifically, the resolution of the issue arising under Mills v. Maryland, 486 U.S. ---, 100 L.Ed. 2d 384 (1988).
¶49With respect to the confession issue, the majority approves the admission of inculpatory statements by a sixty-five-year-old black man with an I.Q. of 74, blind in one eye, his other eye injured and bandaged so that he could not see, wounded and treated at the hospital, with a blood alcohol level of .264, afraid for his life, travelling in a van with officers for over two hours from An-son County to Raleigh, at times cold and thirsty, suffering from his wounds, and being, in the opinion of Dr. Rollins, incapable of appreciating the waiver of his constitutional rights. In this I cannot concur.
¶50Perhaps by finecombing the record, as the majority has done, some evidence can be found which when isolated may support some of the trial court’s findings of fact. The true test of the voluntariness of a confession, though, is found in the totality of the circumstances. State v. Jackson, 308 N.C. 549, 304 S.E. 2d 134 (1983). Once it is established that the procedural requirements of *64Miranda v. Arizona, 384 U.S. 436, 16 L.Ed. 2d 694 (1966), have been met, the determination of whether defendant’s confession was knowingly and voluntarily made must be found from considering all of the circumstances of the case. State v. Corley, 310 N.C. 40, 311 S.E. 2d 540 (1984).
¶51What were the totality of the circumstances when defendant confessed?
¶52The Environment
¶53First, it is to be noted that defendant was in a sheriffs van, being transported to Raleigh “for safekeeping” without the issuance of a judicial order authorizing the transfer. N.C.G.S. § 15A-521 (1983). Although an officer testified that “warrants” were served on defendant while in the van, no warrants appear in the record on appeal. The crime occurred and defendant was taken to Raleigh on 22 December 1984. The order of arrest in the record on appeal was served on defendant on 24 January 1985. So we have a defendant being unlawfully transported in a van through the black of night by hostile officers, alone, with no way to contact anyone outside the van as a witness or otherwise.
¶54The trial court failed to consider the actions of the officers in removing defendant from the hospital and interrogating him in the isolated and coercive environment of a moving police van. Compelling a suspect to travel during interrogation, or interrogating a suspect during travel, is a factor which suggests involuntariness. Clewis v. Texas, 386 U.S. 707, 18 L.Ed. 2d 423 (1967). Here, the defendant was completely incommunicado and isolated from the police station or the jail. This was obviously done for the purpose of interrogating the defendant in an environment conducive to producing inculpatory statements. These are factors indicating involuntariness. This is particularly true when the defendant is susceptible to coercion. Vernon v. Alabama, 313 U.S. 547, 85 L.Ed. 1513 (1941) (per curiam); White v. Texas, 310 U.S. 530, 84 L.Ed. 1342 (1940). The officers were fully aware that the defendant had been badly wounded by gunfire shortly before the interrogation. They knew that defendant had been extremely intoxicated when he was brought to the hospital. They knew he was blind and in a severely weakened physical condition. Having this knowledge, the officers took the defendant from the hospital on a gurney, placed him into a police van containing three of*65fleers, and commenced the nighttime ride from Wadesboro to Raleigh. In so doing, the officers deliberately cut defendant off from the outside world, leaving him in a position of extreme vulnerability to their interrogation. It is difficult to conceive of a fact situation more conducive to overbearing a defendant’s will than the one existing in this case.
¶55The Defendant
¶56The defendant at the time of this offense was sixty-five years of age. He was suffering from serious gunshot wounds sustained in the preceding hours. He was blind, mentally disordered, had a borderline intellect, and was under the influence of alcohol. He expressed to the officers that he was afraid for his life at the time they were interrogating him in the police van. Dr. Perry, an emergency room physician, testified that defendant was brought to the hospital by ambulance around 6:30 p.m. Dr. Perry treated him in the trauma facility for two serious gunshot wounds, one a laceration through the forehead down to the skull, the other a puncture wound to the buttocks. The head wound was about six centimeters long and very deep, the bullet passing through the entire thickness of the forehead down to the skull. The wound to the buttocks was a through-and-through injury, about ten to twelve centimeters in length. Defendant was semiconscious at the time of his arrival and unable to respond coherently to the doctor’s attempts to communicate with him. Such wounds are normally very painful, but defendant did not indicate that he was suffering the normal degree of pain, which the doctor attributed to the degree of defendant’s alcoholic intoxication, which was a blood alcohol level of .264. Dr. Perry treated defendant’s wounds for some forty minutes, closing them with sutures. They were heavily bandaged, completely closing the defendant’s good eye, he being blind in the other eye. During the treatment defendant was administered intravenous fluids for the purpose of elevating his blood pressure, according to Dr. Perry.
¶57Dr. Rollins is an expert medical witness, a forensic psychiatrist, and employed by the state. He examined the defendant several times with respect to this incident. He testified that defendant had multiple personality disorders, including paranoid and delusional thinking, with impaired judgment and perception. In 1980 he had scored 89 on an I.Q. examination, but later, at the *66time of this event, his I.Q. test score had deteriorated to 74, which placed defendant in the borderline range of intellectual functioning. Dr. Rollins further testified that defendant was substantially intoxicated at the time of the interrogation and that this condition would exacerbate defendant’s mental disabilities. He expressly testified that defendant, because of his mental disorders and his physical condition at the time, was incapable of knowingly and voluntarily waiving his constitutional rights at the time that he was interrogated by the officers.
¶58The trial judge failed to make any findings as to the defendant’s mental condition and completely overlooked the deteriorating mental and psychotic condition of the defendant which had occurred over the past five years as evidenced by the decline in his I.Q. scores. The court’s determination that defendant had an I.Q. at the time of the interrogation between 74 and 89 is unsupported by the evidence. The only relevant evidence indicates that at the time of the interrogation defendant’s I.Q. was 74, having deteriorated from the 89 that he had scored some five years previously. Mental handicaps which make a defendant particularly susceptible to the influence of others are an important factor in weighing voluntariness. Jurek v. Estelle, 593 F. 2d 672 (5th Cir. 1979). Further, a defendant’s physical condition is an important factor in determining whether a confession is voluntary. Cooper v. Griffin, 455 F. 2d 1142 (5th Cir. 1972). See also State v. Dailey, 351 S.E. 2d 431 (W. Va. 1986).
¶59In Colorado v. Connelly, 479 U.S. ---, 93 L.Ed. 2d 473 (1986), the United States Supreme Court held that ordinarily a defendant’s mental impairment, standing alone, is not a sufficient basis for ruling a confession involuntary. However, in this case, we have not only the defective mental condition of the defendant, but also the coercive environment in which the officers placed the defendant, together with his impaired physical condition. These factors considered together are sufficient to show involuntariness.
¶60The Interrogation
¶61After placing the defendant in the police van and beginning the journey to Raleigh, the officers informed the defendant of his rights as they were leaving the Wadesboro city limits. To this the defendant responded: “I was tried for my life and I understand all this stuff. I was tried for my life back in 1951.” Interestingly, *67Mirandawarnings were not required until 1966, fifteen years after defendant’s earlier court experience. The officers testified that after being read his rights defendant said “[h]e did understand but he did not want to sign anything because he couldn’t see.” From this testimony, the trial court found that the defendant made an “express” statement that he did not want an attorney present. A fair reading of this testimony, however, only shows that the defendant responded that he understood his rights, but he did not want to sign anything because he could not see. There is no indication in this testimony that the defendant expressly waived the presence of counsel. He did not go the additional step and say: “I don’t want a lawyer now.” Of course, it is not essential that there be an express waiver by defendant. However, the court must presume that the defendant did not waive his rights. State v. Connley, 297 N.C. 584, 256 S.E. 2d 234, cert. denied, 444 U.S. 954, 62 L.Ed. 2d 327 (1979). The trial court’s finding of an express waiver is unsupported by the evidence. Nowhere does the trial court find an implied waiver under all the circumstances of the case, and none can be so found. For this reason, I think the trial judge’s order is fatally flawed.
¶62The interrogation continued for some two hours, and during this time the officers obtained admissions from defendant that proved to be critical to the state’s case. During the interrogation, the defendant stated, “I’m fearing for my life now.” Although the officers testified that they assured defendant that he had nothing to fear, the defendant could not see the officers and had no way of knowing what they were doing in the van. He also had no way of knowing where they were taking him, even though one officer said he was being taken to Raleigh for safekeeping. Certainly, in view of the environment in which he was situated and his physical and mental condition, it is reasonable that the defendant was fearful for his life at the time that he was being interrogated. That fact alone is sufficient to refute any finding of voluntariness.
¶63During the interrogation the defendant was suffering from his painful bullet wounds. There is no evidence that he had been given any sedatives or painkillers to alleviate his suffering. The record shows that defendant voiced numerous complaints during the interrogation and that he was experiencing physical discomfort.
¶64*68At one point defendant told the officers that he was tired and wanted to stop the interrogation. He also complained at that time that he was cold, and the heat in the van was turned up and he was given a sheet to cover himself. After a short period, one of the officers asked defendant if he wanted to talk. Defendant stated that he did not want to talk to Officer Jackson. One of the other officers asked defendant if he would talk with him, and defendant agreed. This procedure by the officers violates the ruling of Edwards v. Arizona, 451 U.S. 477, 68 L.Ed. 2d 378, reh’g denied, 452 U.S. 973, 69 L.Ed. 2d 984 (1981). In Edwards, the Court held that when a suspect indicates his desire to stop the interrogation, the officers rtiust terminate it and the interrogation cannot be resumed until initiated by the suspect. Here, the evidence clearly shows that defendant desired to terminate the interrogation. He said that he was tired and wanted to stop. The officers stopped for a short time and then, without any initiation of the interrogation by the defendant, the officers resumed the process of examining the defendant. For this reason, the confession was not admissible.
¶65Thus, I find defendant’s statement to be involuntary and the result of his being unlawfully placed in a coercive environment while severely handicapped, both mentally and physically, and interrogated in violation of Edwards v. Arizona while fearful for his life. Defendant is entitled to a new trial.