Defendant was convicted in the Superior Court, Wake County, Robert L. Farmer, J., of murder, robbery and assault, and was sentenced to death. On appeal, the Supreme Court, Exum, C.J., held that: (1) defendant's confession was admissible, and (2) requirement that jury find unanimously each mitigating circumstance before the circumstance could be considered in ultimate sentencing decision was reversible error. Affirmed in part, vacated in part and remanded.

EXUM, Chief Justice.

This case arises from a robbery and shootings at a convenience store. On charges of first degree murder, robbery with a dangerous weapon, and assault with a deadly weapon with intent to kill inflicting serious injury, defendant entered conditional pleas of guilty which preserved his right to appeal the trial court's order denying his motion to suppress a confession.

The jury impaneled at the sentencing hearing for the murder conviction recommended a sentence of death. The trial court entered judgment accordingly and also sentenced defendant to consecutive prison terms of forty years on the robbery conviction and twenty years on the assault conviction.

Defendant argues that his confession should not have been admitted because it was involuntary and that the judgments should therefore be vacated. He also assigns error to both the capital and noncapital sentencing proceedings. We hold that the trial court properly denied defendant's motion to suppress, and we find no error in the sentencing proceeding in the robbery and assault cases. We remand the murder case for a new sentencing proceeding in light of McKoy v. North Carolina, 494 U.S. 433, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990).

At the capital sentencing proceeding, the State's evidence tended to show the following:

Shortly before midnight on 7 March 1987, several employees and customers were in a Raleigh Fast Fare. Defendant, wearing a ski mask and red sweatshirt, entered and fired an Uzi 9 mm pistol three to six times. Two bullets struck Orlando Watson, who, after surgery, survived the wounds he suffered. Defendant then said "this is a stickup," turned, and twice shot Ed Peebles, who was standing in the corner of the store. The bullets ruptured Peebles' aorta and a large vein, causing massive hemorrhaging and ultimately death.

Defendant then directed Charles Taylor, the man behind the counter, to open the cash register. Defendant threatened to kill him. When Taylor was unable to open the register defendant grabbed it and pulled it by the cord out the front door, around the fence, and to the side of the building.

Police Officer Tony Wisniewski, who was patrolling the area, was summoned. He entered the Fast Fare and radioed for assistance, transmitting a description of the gunman given to him by those in the store. Within minutes several other officers arrived at the scene and secured the area. There were scratches and gouges along the sidewalk where defendant had dragged the cash register.

At a low wall, Sergeant Inman observed the silhouette of someone's head, chambered a round in his shotgun and ordered the person to freeze. The figure fled, and the police gave chase, ultimately apprehending him at a ball park within several blocks of the Fast Fare. The fleeing person was defendant. Pursuing officers testified that defendant was not appreciably mentally impaired when they arrested him.

The police found a ski mask, a red N.C. State sweatshirt, the cash register, (Subsequent analysis of the cash register revealed at least one of defendant's fingerprints) and an Uzi semiautomatic weapon near the low wall where Sgt. Inman had first observed defendant. At the crime scene, the police discovered shell casings and bullets fired from a semiautomatic weapon.

A mounted video camera recorded much of the robbery and its tape was played several times at the sentencing hearing to illustrate testimony for the State and to cross-examine one of defendant's witnesses. Defendant was arrested, taken to the police station, and interrogated. Over the next two days he was questioned several more times by different officers and at different places.

Defendant's evidence tended to show the following:

Dr. Billie Corder, a clinical psychologist, examined and tested defendant three times. She obtained information about defendant from his family and about the offenses from the police. In her opinion defendant was not psychotic but his social functioning and his problem-solving ability were impaired. His emotional responses to the world were unstable.

Dr. Corder stated that defendant could be characterized as a borderline personality with antisocial tendencies. His full scale I.Q. was 92; the majority of the population has an I.Q. between 90 and 110. Defendant functioned much like an adolescent. He had no vocational skills and relied on others for financial support.

Dr. Corder learned that defendant's father had been diagnosed as a paranoid schizophrenic and was admitted to Dorothea Dix Hospital at least fifteen times since 1973. Defendant's mother has had a drug abuse problem since defendant was a child. Dr. Corder also learned that shortly before the crime defendant had been staying with his girlfriend and her mother. The girlfriend, who was carrying defendant's child, broke up with him three days prior to the killing. Her mother made defendant move out of the home.

Dr. Corder believed that these and other stressful occurrences exacerbated defendant's personality disorder. She also believed that defendant showed remorse, shame, and guilt during her interviews. In her opinion, defendant's ability to conform his conduct to the requirements of the law was impaired on 7 March 1987 because of his disorder exacerbated by stress.

On cross-examination, Dr. Corder admitted that at the time of the shootings defendant had the mental capacity to know the difference between right and wrong. She stated that defendant does not accept societal norms like law- abiding people. Dr. Selwyn Rose, a psychiatrist, also testified. Dr. Rose had interviewed defendant, reviewed a transcript of his confession, and viewed the videotape of the crime.

Dr. Rose believed that defendant knew the difference between right and wrong and was able cognitively to know what he was doing at the time of the crimes. Dr. Rose believed defendant had the specific intent to commit a robbery and to kill "in the primitive sense of knowing that when you squeeze a trigger somebody is going to get hit." However, as far as "thinking about, planning or wanting to kill somebody," defendant was not capable of that type of intent at the time of the shootings.

Dr. Rose believed defendant had a "borderline personality disorder" with a fragile ego. He displayed mixed traits such as immaturity, impulsiveness, substance abuse, and passive aggressive characteristics. However, none of these traits were strong enough to become diagnoses. Defendant told Dr. Rose that he had been using a substantial amount of drugs in the three days prior to the crimes and had been assaulted on the day of the robbery for the alleged disappearance of $200 worth of "reefer."

Viewing the videotape of the crime during cross-examination, Dr. Rose testified that defendant's stride and the manner in **312 which he walked into the store could not be described as unusual. In Dr. Rose's opinion, defendant's ability to conform his conduct to the requirements of the law was impaired at the time of the crimes. Dr. Rose believed that defendant's use of a mask showed planning for the robbery, but that defendant did not plan the killing.

Some of defendant's friends testified in his behalf. They stated that in the evening before the robbery, defendant had snorted cocaine, smoked marijuana, and drunk beer. According to Toni Lannette Herring, defendant was "very high" and "hyper." Ms. Emily May stated that defendant was "jittery," "nervous," and "crying" that evening. Other of defendant's friends testified in a like manner.

Defendant's parents testified about the circumstances of his upbringing. In his early life, defendant was both the victim of and a witness to domestic violence. Both his parents had suffered alcohol and drug abuse problems, and his father was a schizophrenic.

The State's rebuttal evidence tended to show the following:

On 20 February 1987, defendant and two others broke into the Triangle Jewelry and Pawn in Cary. The three men stole seven firearms, including an Uzi 9mm gun which carries up to twenty-two rounds of ammunition. Other evidence showed that defendant continued to receive financial support from his mother, who was then living in Baltimore, and his father, who was living in Raleigh.

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In summary, we conclude there was no error in accepting defendant's conditional pleas of guilty on all charges. Because of error in the capital sentencing phase of his murder conviction (87 CRS 12629), defendant is entitled to a new capital sentencing proceeding under N.C.G.S. § 15A-2000. There was no error in the Fair Sentencing Act proceedings culminating in defendant's sentences for robbery with a dangerous weapon (87 CRS 9751) and felonious assault (87 CRS 9752).

State v. Jones, 443 S.E.2d 48 (N.C. 1994) (Direct Appeal).