concurring in result.
I concur in the result reached by the majority but, I disagree with its treatment of Issue I. As hereinafter related, whether or not the trial judge acted properly in excusing certain prospective jurors, including Mr. Flowers, is subject to serious question. Assuming that he did err in this regard, the defendant, nevertheless, was not thereby prejudiced. Inasmuch as Witherspoon v. Illinois, (1968) 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, upon which he relies, holds only that a state may not constitutionally execute a death sentence imposed by a jury culled of all who expressed opposition to capital punishment, it affords him no shelter, since the death penalty was not imposed. It is for that reason alone that I concur in the result reached by the majority upon that issue. I take vigorous exception, however, to the majority’s having gone further and ostensibly, at least, premised its decision also upon the alternative basis that the trial court did not err in excusing Mr. Flowers. There simply is no Witherspoon issue before the Court unless a death sentence has been imposed. Bumper v. North Carolina, (1968) 391 U.S. 543, 544, 88 S.Ct. 1788, 1790, 20 L.Ed.2d 797, 800, Shack v. State, (1972) 259 Ind. 450, 460, 288 N.E.2d 155, 162. To the extent that the majority purports to hold that Witherspoon was not violated, it unnecessarily risks misleading the bench and bar, as that portion of the opinion can have no effect upon future cases.
I do not necessarily agree that the trial judge acted properly in excusing certain prospective jurors by reason of indicated bias against death sentences. The quotation from Adams v. Texas, (1980) 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581, i.e., “We repeat that the State may bar from jury service those whose beliefs about capital punishment would lend them to ignore the law or violate their oaths.”, although applicable in that case, may be misplaced in the case at bar.
Under our statutory provisions, the recommendation of the jury upon the punishment issue is not binding upon the court. The jury’s determination, therefore, does not have the critical effect that it has in Texas, although in Witherspoon, the Court stated, “ * * * but nothing in our decision turns upon whether the judge is bound to *430follow (the jury’s) recommendation.” 391 U.S. at 518 n. 12, 88 S.Ct. at 1775 n. 12, 20 L.Ed.2d at 783 n. 12. Additionally, the wording of the Indiana Statute, Ind.Code § 35-50-2-9(e) (Burns 1979) does not appear to bind the conscience of the jurors but provides only that the jury may recommend the death penalty under certain prescribed circumstances. It is not altogether illogical to conclude, therefore, that although a juror finds facts warranting the death penalty and no mitigating circumstances whatsoever, he may, nevertheless, recommend against imposing it without violating his oath. Under such an interpretation of the statute, Juror Flowers certainly did not unequivocally indicate that his feelings about the death penalty could, or would, interfere with the duties imposed upon him by his oath and the death penalty statute.
Unquestionably the State is entitled to a jury composed only of such persons who can abide by their oaths to follow the law and thus would not let their personal convictions in opposition to the death penalty control their votes upon the guilt or innocence of the defendant or upon any other issue of fact. However, whether, under our statute, which only permits the imposition of a death sentence under some circumstances and does not require it under any, and which renders the verdict advisory only, the State is entitled to a jury all members of which could, under some circumstances, recommend a death sentence, is a question which, to my knowledge, has not been answered. It is not necessary to answer it to resolve the case before us, and I leave it for another day.
HUNTER, J., concurs.