dissenting.
Because the comments and questions by the district court during the voir-dire process infringed upon appellant’s constitutional right to a trial by a fair and impartial jury, I would have reversed the conviction in this case and remanded for a new trial.
Communication through voir dire lies at the heart of our system of trial by jury:
“It is upon the delicate inquiry process called voir dire that the American jury system rests, because it is through this procedure that impartial jurors are disclosed and fair trials are insured. Voir dire means ‘to speak the truth,’ and the American jury voir dire has evolved as that intricate process where courts and trial lawyers inquire and communicate delicately and often personally with citizens who are called for jury duty in order that the trial’s truth-seeking exercise can proceed and the bias and prejudice which we all have may be revealed and examined.” Patterson v. State, Wyo., 691 P.2d 253, 261 (1984) (ROSE, J., specially concurring in the result only).
When the voir-dire procedure penalizes open and honest responses from venire persons, no meaningful exploration of biases and prejudices can occur, and the right of the accused to a fair trial is thwarted.
As the majority discuss, appellant seeks reversal of his conviction under the plain-error rule, since he raised no objection at trial to the court’s conduct during voir dire. I have no difficulty finding that the error alleged by appellant satisfies the criteria established by this court for application of the plain-error doctrine. Bradley v. State, Wyo., 635 P.2d 1161, 1164 (1981);1 Daellenbach v. State, Wyo., 562 P.2d 679, 681 (1977).
Clear Rule of Law
The Sixth Amendment to the Constitution of the United States2 and Art. 1, § 10 of the Wyoming Constitution3 guarantee the accused in a criminal proceeding a trial by an impartial jury. Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961); Collins v. State, Wyo., 589 P.2d 1283, 1289 (1979). We said in Lapp v. *58City of Worland, Wyo., 612 P.2d 868, 873 (1980):
“ * * * The essential elements of a trial by jury are that there be impartial jurors, who unanimously decide the facts in controversy under the direction of a judge. [Citation.]” (Emphasis added.)
Voir dire is the procedure through which courts determine whether a juror is qualified and can reasonably be expected to be fair and impartial. Swain v. State of Alabama, 380 U.S. 202, 220-221, 85 S.Ct. 824, 836, 13 L.Ed.2d 759 (1965); Vivion v. Brittain, Wyo., 510 P.2d 21, 24 (1973); Rule 25, W.R.Cr.P.;4 § 7-ll-105(a)(ii), W.S.1977.5 This court recently discussed the function of voir dire in Jahnke v. State, Wyo., 682 P.2d 991, 999 (1984):
«* * * Voir dire examination is designed to insure the right to a fair and impartial jury by affording the parties the opportunity to discover potential prejudices and biases which would interfere with the ability of potential jurors to fairly decide the case, and the preservation of that right to prove actual bias is an integral portion of the right of a defendant to an impartial jury. [Citations.] Of the statutory grounds for challenge for cause with respect to prospective jurors in a criminal case the most significant well may be ‘bias or prejudice for or against the accused.’ Section 7-ll-105(a)(ii), W.S.1977.”
While the trial court has broad discretion concerning the questioning of prospective jurors during voir dire, this discretion must be exercised subject to the essential demands of fairness. Aldridge v. United States, 283 U.S. 308, 310, 51 S.Ct. 470, 471, 75 L.Ed. 1054, 73 A.L.R. 1203 (1931); Jahnke v. State, supra, 682 P.2d at 999. The direction and manner of inquiry on voir dire cannot undermine the objective of ferreting out partiality and bias. Aldridge v. United States, supra. Thus, the clear rule of law at issue in the case at bar is the right of the accused to a trial by an impartial jury, which right is secured by a fair and meaningful voir dire.
Violation of the Rule of Law
During voir dire in the instant case, the court posed questions and made comments similar to the following example, whenever a prospective juror revealed his or her biases concerning the defendant, the witnesses, or the charged offense:
“* * * [D]on’t you think you could sit here and listen to the evidence in the case and decide it fairly? That’s all we’re asking you to do.”
This line of inquiry eventually elicited a positive response from everyone admitting to a bias except Miss Pivik. When she adhered to her position that her working relationship with the accused precluded her service as an impartial juror, the court said:
“ * * * I can’t understand people like you, Miss Pivik, particularly with your knowledge of the law and your association with the law for so many years in Rock Springs. You’re excused for cause.”
In my judgment, this manner of conducting voir dire chilled effective communication with the panel and foreclosed the possibility of appellant’s obtaining a fair and impartial jury.
*59As discussed above, the purpose of voir dire is to search out prejudices and other factors which prevent any member of the panel from rendering a fair and impartial verdict. Jahnke v. State, supra. This purpose will be frustrated if questions and comments by officers of the court effectively instruct venirepersons to conceal their biases and avoid displeasing the court. When prospective jurors are subjected to ridicule or harassment for admitting to their prejudices, waiting members of the panel quickly learn which answers will avoid such treatment. Furthermore, an attitude of exasperation on the part of the court may convince prospective jurors that their concerns are unimportant or a waste of time.
When even one juror fails to disclose a bias based on an out-of-court relationship with the accused, a fair trial is impossible. In State v. Salas, 68 Or.App. 68, 680 P.2d 706, 708 (1984), the Oregon Court of Appeals recognized this concept in granting a defendant a new trial because of juror misconduct:
“ * * * [F]or a juror to fail to disclose her bias against a defendant stemming from out-of-court knowledge would turn a purportedly fair trial into a ‘futile forum.’ Clark v. United States, 289 U.S. 1, 53 S.Ct. 465, 77 L.Ed. 993, 998 (1932). In order to preserve the integrity of the jury system a defendant should be tried by a jury that does not include anyone who, at the outset, harbors serious doubts about his credibility on the basis of undisclosed out-of-court familiarity with him.”
In the case at bar, the questions and comments of the trial court (set out in detail in the majority opinion) closed rather than opened the channels of communication. The court’s conduct, therefore, prevented the meaningful voir dire that is guaranteed by statute, rule and decision and that is essential to the constitutionally required fair and impartial jury.
Denial of a Substantial Right
Subsequent to the trial court’s expressed disapproval of Miss Pivik’s responses to voir dire, 13 prospective jurors were called and briefly examined by counsel. Not one of these persons suggested that he or she held any biases that would bear on the case. Four persons denied having any prejudice or bias of any nature whatsoever. Given the conduct of the court during the voir-dire process, the responses of these prospective jurors are not surprising.
While we cannot know with certainty that one or more of these individuals harbored feelings and opinions inconsistent with a fair trial, neither can we say that none of the jurors held such biases. Appellant in this situation was denied the meaningful exercise of his peremptory challenges as well as his challenges for cause. Accordingly, the voir-dire process failed to serve its intended purpose of insuring appellant a trial before unbiased and unprejudiced jurors.
The comments of the Washington Supreme Court in State v. Parnell, 77 Wash.2d 503, 463 P.2d 134, 137 (1969), are pertinent to the case at bar:
“ * * * [M]ore important than speedy justice is the recognition that every defendant is entitled to a fair trial before 12 unprejudiced and unbiased jurors. Not only should there be a fair trial, but there should be no lingering doubt about it.”
I would have remanded for a new trial conducted in accordance with the constitutional mandates of fairness.
. Bradley v. State establishes a three-part test for determining whether an error rises to the level of plain error:
" * * * First, the record must be clear as to the incident which is alleged as error. Second, the party claiming that the error amounted to plain error must demonstrate that a clear and unequivocal rule of law was violated. Finally, that party must prove that a substantial right has been denied him and as a result he has been materially prejudiced.” 635 P.2d at 1164.
. The Sixth Amendment to the United States Constitution provides in part:
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed * *
.Article 1, § 10 of the Wyoming Constitution provides in part:
“In all criminal prosecutions the accused shall have the right * * * to a speedy trial by an impartial jury of the county or district in which the offense is alleged to have been committed."
. Rule 25(a) and (b), W.R.Cr.P., authorizes the voir-dire process and peremptory challenges:
"(a) Examination of jurors. — The parties, or their attorneys, may conduct the examination of prospective jurors, but such examination shall be under the supervision and control of the court, and the court may itself conduct such further examination as it deems proper.
"(b) Peremptory challenges. — * * * If the offense charged is punishable by imprisonment for more than one (1) year, each defendant shall be entitled to 8 peremptory challenges.
. If voir dire reveals that a prospective juror is prejudiced, he may be dismissed for cause pursuant to § 7 — 11—105(a)(ii), W.S.1977, which provides:
"(a) The following shall be good cause for challenge to any person called as a juror on any indictment:
******
"(ii) That he has formed or expressed an opinion as to the guilt or innocence of the accused, or is biased or prejudiced for or against the accused; * * * ”