(dissenting):
I respectfully dissent. It is my opinion that appellant’s death sentence should be vacated and the case remanded for a new penalty phase proceeding on the following grounds.
I. JUROR QUALIFICATION
First, I am of the opinion that the trial court erred in seating Juror Algie Barrineau because (1) the juror had already formed and expressed his opinion supporting the imposition of the death penalty in appellant’s first trial; (2) the juror recounted facts from appellant’s first trial upon which his opinion was based; and (3) despite the statutory provision for life imprisonment in certain instances where circumstances of aggravation are present, Juror Barrineau equivocated on whether he would impose the death sentence where the state had proven an aggravating circumstance. The record reflects that the juror was unable to fairly and impartially consider the evidence and render a fair verdict, and thereby denied the appellant his fundamental right to a fair and impartial jury. Cf. State v. Hardee, 279 S. C. 409, 308 S. E. (2d) 521 (1983); State v. Gulledge, 277 S. C. 368, 287 S. E. (2d) 488 (1982). See also Haley v. Blue Ridge Transfer Co., Inc., 802 F. (2d) 1532 (4th Cir. 1986).
*126II. SOLICITOR’S ARGUMENT
Second, I hold the view that it was improper for the solicitor to argue the deterrent effect of capital punishment. Furthermore, prior decisions of this court have established principles which prohibit arguing such to a jury. See State v. Plath, 281 S. C. 1, 313 S. E. (2d) 619 (1984); State v. Woomer, 278 S. C. 468, 299 S. E. (2d) 317 (1982); and State v. Gilbert, 277 S. C. 53, 283 S. E. (2d) 179 (1981). “The propriety of the death sentence as a form of punishment is a matter addressed to the discretion of the legislature ... [which] has determined that capital punishment is an appropriate mode of punishment...” State v. Gilbert, 283 S. E. (2d) at 181. See also State v. Patterson, 285 S. C. 5, 12, 327 S. E. (2d) 650, 654 (1984). I believe the solicitor’s argument violated the mandates of this court.
III. JURY CHARGE
Finally, I would hold that it was error for the trial judge to refuse to charge the mitigating circumstance that the murder was committed while the defendant was under the influence of a mental or emotional disturbance; being of the opinion that there existed ample evidence to support such a charge. See S. C. Code Ann. § 16-3-20(C)(b)(2) (Supp. 1987). See also State v. Drayton, 293 S. C. 417, 430, 361 S. E. (2d) 329, 336 (1987) (Finney, A. J., dissenting).
Accordingly, I would vacate appellant’s sentence of death and remand the case for a new penalty phase proceeding.