dissenting.
The majority opinion, in Division 3, deals with appellant’s complaints regarding the death-qualification of the jury with the summary conclusion that the rulings of the trial court were within the deference due that court’s determination. Because I believe those rulings were incorrect, I must dissent.
Appellant has enumerated as error the trial court’s refusal to strike four prospective jurors for cause on the basis of their partiality toward the death penalty. While all four of the prospective jurors expressed opinions which leave in serious doubt their ability to decide fairly the issue of punishment, two of the four (Wiley and McKoy) made it abundantly clear that they were of the firm opinion that a conviction for malice murder called for the death penalty no matter what the defense might produce in mitigation.
“A criminal defendant is entitled to an impartial jury by the Sixth Amendment to the U. S. Constitution. A juror who has made up his mind prior to trial that he will not weigh evidence in mitigation is not impartial. Such a juror’s views on capital punishment would ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’ [Cit.]” [Cit.] In other words, “an inability fairly to consider a life sentence is just as disqualifying as an inability fairly to consider a death sentence.” [Cit.] [Skipper v. State, 257 Ga. 802 (8) (364 SE2d 835) (1988).]
The State contends that these jurors showed that they were not disqualified because they agreed that they would obey the trial court’s instruction to consider the mitigating evidence. Both jurors, however, testified that although they would consider the evidence, there was nothing which the defense could show that would make them vote for *156life imprisonment if the evidence showed the defendant was guilty of malice murder. This court held in Cofield v. State, 247 Ga. 98 (2) (274 SE2d 530) (1981), that
Decided March 13, 1992 Reconsideration denied April 2, 1992. Kenneth W. Krontz, Edwards & McLeod, Jennifer McLeod, for appellant. David McDade, District Attorney, Michael J. Bowers, Attorney General, Robert D. McCullers, Staff Attorney, for appellee.[i]t is not sufficient that the juror be willing to “consider” the death penalty if he or she is committed to automatically vote against the death penalty after having “considered” it.
Given the holding in Skipper, supra, the converse of the holding in Cofield should be true: it is not sufficient that the juror be willing to “consider” evidence in mitigation if he or she is committed to vote automatically for the death penalty after having “considered” the mitigating circumstances.
The best the State was able to do in attempting to rehabilitate jurors Wiley and McKoy was to get them to state that they would obey the trial court’s instructions and consider the evidence in mitigation. Nonetheless, each of them also stated that if the evidence showed the defendant to be guilty, there was nothing which would be sufficiently mitigating to persuade them to vote against the death penalty. I am convinced that those jurors indicated clearly that they had made up their minds, that they would not fairly weigh evidence in mitigation, that their views on capital punishment would prevent or substantially impair the performance of their duties as jurors in accordance with their instructions and their oaths. Under the authorities cited above, appellant was entitled to have jurors Wiley and McKoy excused for cause, and the trial court’s refusal to do so requires a new trial on the issue of punishment.
I am authorized to state that Presiding Justice Weltner joins this dissent.