concurring specially in addendum.
I concur in the majority opinion on motion for reconsideration because I do not believe the mechanics of jury selection in death penalty cases will permit the harmless error rule announced in Alderman v. State, 241 Ga. 496 (246 SE2d 642) (1978).
The mechanics of the selection procedure require that 42 jurors be impaneled. Code Ann. § 59-801. The defendant is allowed 20 peremptory challenges and the state 10. Code Ann. § 59-805. Beginning with the first juror impaneled, each juror is put first upon the state for consideration as to use of a peremptory challenge, and then upon the defendant, Code Ann. § 59-808. This process is most complex and a highly variable sequence of events may ensue. The use or non-use of a challenge by one party or the other sets up an entirely new group of possibilities with regard to the remaining jurors impaneled.
To illustrate, suppose the court permits a juror to be impaneled who, on voir dire, has given answers disqualifying him or her under Witherspoon. Assume that juror is number 36 and that another juror who is even more objectionable to the state is impaneled as number 39. Suppose as juror number 36 is placed upon the state in the selection process, a total of 10 jurors have been selected, and the state has 1 challenge remaining while the defendant has 4. What does the state do? If the state peremptorily challenges number 36 it will have no way to eliminate number 39. So, the state does not challenge number 36. Neither does the defendant. Then suppose neither party challenges juror number 37. The panel of 12 is complete. The state has remaining one unused challenge.
It just does not follow that it is harmless error to wrongfully excuse a juror as being disqualified under Witherspoon simply because the state does not use all its peremptory challenges and therefore could have been expected to use a challenge to eliminate the juror even if impaneled. There are too many variables which may give rise to the non-use of a peremptory challenge.