dissenting.
I dissent.
In Division 7 (e), the majority is vacating a death sentence because of a question concerning the qualification of a juror on the panel who was never put upon either the state or the defense. The trial jury was selected when Pope accepted juror number 38 and he *215had 4 strikes remaining. Under these circumstances, it is difficult to suggest — at the cost of re-trial — that the jury selection process was anything other than fair.
Decided July 16, 1986 Reconsiderations denied July 30, 1986. Word, Cook & Word, Gerald P. Word, Julie I. Edelson, for appellant. William A. Foster III, District Attorney, Jeffrey L. Ballew, Assistant District Attorney, Michael J. Bowers, Attorney General, J. Michael Davis, Assistant Attorney General, for appellee.I am authorized to state that Chief Justice Marshall joins in this dissent.
Appendix A.
THE COURT: If you would state your name and your occupation, please, sir.
THE JUROR: James M. Brownlow; retired.
THE COURT: Have you for any reason formed, expressed any opinion in regard to the guilt or the innocence of the accused?
THE JUROR: No.
THE COURT: Have you any prejudice or bias resting on your mind either for or against the accused?
THE JUROR: I don’t understand the question.
THE COURT: Do you have any prejudice or bias resting on your mind either for or against the accused?
THE JUROR: No, sir.
THE COURT: Is your mind perfectly impartial between the State and the accused?
THE JUROR: No.
THE COURT: Is it impartial?
THE JUROR: No, it’s impartial.
THE COURT: Sir?
THE JUROR: No, partial.
THE COURT: Impartial?
THE JUROR: Oh, yeah, it would be impartial.
THE COURT: All right, sir. Now, are you related either by blood or marriage to any of the following persons: Lee Watson Webb, III, Lisa Kirk, Bill Hamrick, Gail Bowers, or Wayne Kidd?
THE JUROR: No.
THE COURT: Are you conscientiously opposed to capital punishment?
*216THE JUROR: Could I answer that in my way?
THE COURT: Yes, sir.
THE JUROR: Any crime that would call for capital punishment regardless of creed, color, or race I’m for it a hundred percent.
THE COURT: All right, sir. Mr. Foster, you have any questions?
EXAMINATION
BY MR. FOSTER [for the state]:
Q Mr. Brownlow, my name is Bill Foster. I’m the district attorney in Paulding County, in the Tallapoosa Circuit. And Paulding County and Polk County and Haralson County are the three counties that make up the Tallapoosa Circuit. We’re west of Cobb in Dallas over there.
The crime which we’re fixing to strike a jury, we’re going to try arose in Bremen, Georgia. Do you know where Bremen is?
A Oh, yeah.
Q Out 1-20, Bremen is in Haralson County. The case was indicted by a Grand Jury from Haralson County and John David Pope was indicted there for the offense of murder, armed robbery, two counts of aggravated assault, and two counts of kidnapping. And then was transferred here for trial in Cobb County. The judge and prosecutors and all came with the case, and we’re going to try it here.
I need to know since this is a case which the State will be seeking the death penalty if in — what your attitudes are about the death penalty. Now, you say you are for it; is that correct?
A If a crime is committed that would call for it, I’m for it a hundred percent. Right.
Q You understand Georgia law provides for the death penalty only in certain — for certain crimes?
A Yeah.
Q And then only under certain circumstances, you understand that?
A Oh, yeah.
Q And you would not be for it automatically, would you?
A Well, a death — anybody commits a sin — a crime of death, that’s death; isn’t it? They kill somebody. Yeah, I would be for it.
Q You would be for it?
A Yes, sir.
Q But you wouldn’t automatically give the death penalty, would you? Would you listen to all the evidence before you made up your mind?
A I would listen to all the evidence; but like I said in the beginning, if they were found guilty beyond a shadow of a doubt, that ought to clarify that.
*217Q Okay. We’re assuming then the jury — and under Georgia law the jury first makes the decision about guilt or innocence. That’s the only thing you consider. You understand?
A I didn’t understand that.
Q Well, the trial is a two-part thing.
A Yeah.
Q The first thing is nothing but guilt or innocence. Did he do it or didn’t he do it. The jury makes that decision. And after that decision is made, if the defendant is found guilty, then the jury considers punishment. In other words, you got a two-phase trial.
A Yeah.
Q So we’re assuming that the defendant has been found guilty, and the judge has told you that for the crime that he’s been found guilty of and under those circumstances the law provides the jury has an option of deciding either life or death. You understand that?
A Oh, yeah.
Q Okay. Now, in such a situation, assuming the jury you’re on had already found the defendant guilty. Then you would listen to whatever evidence was put up in mitigation and aggravation before you made your decision about whether or not to give the death penalty; would you not?
A Yeah, I’d listen.
Q You’d listen to all the evidence before you made your decision?
A Yes. I would listen to all the evidence before I made a decision.
Q About anything involving about the death penalty?
A Right.
Q In other words, you wouldn’t vote automatically to give somebody a death penalty?
A Unless like I said in the beginning if they were found guilty without a shadow of a doubt and the crime called for it, yeah. If that’s what you’re referring to, yeah, I’d stick with it.
Q You’d stick with it?
A Yes, sir.
Q But you’d listen to whatever evidence was put up?
A I would listen to it, but it wouldn’t change my opinion.
Q Okay. Now, you feel that under any circumstances then you would vote for the death penalty?
A Yeah, in those circumstances, what I said, yeah. I sure would.
Q That would be only in cases where it was authorized by the Court; is that correct? Where the Court told you as a juror you were authorized to consider the death penalty?
A Well —
Q In other words, if the Court didn’t allow you to, you couldn’t vote for the death penalty, could you?
A No.
*218Q And if the defendant had mitigating circumstances, things that he felt like you should consider in mitigation, you would listen to all of that; wouldn’t you?
A I’d listen to all of it before I would make a decision.
Q Your decision is not just going to be automatic; is it?
A Well, no.
MR. FOSTER: Thank you, sir.
A (Continuing) Only if he’s found guilty.
MR. FOSTER: Thank you, Mr. Brownlow.
THE COURT: Mr. Word?
MR. WORD: Thank you, your Honor. May I follow up on that, your Honor? Seems to be some serious question as to that issue.
EXAMINATION
BY MR. WORD [for the defense]:
Q Mr. Brownlow, my name is Jerry Word from Carrollton, and I want to ask you just a few questions. I represent Mr. Pope. Now, assuming the defendant was found guilty and you had voted along with the rest of the jurors for guilt. You found him guilty beyond a reasonable doubt. And the judge said to you now you’re authorized to consider the death penalty at this point. It is my understanding then at that point you would always vote for the death penalty if the judge said you’re authorized to do it?
A Right. If found guilty without a shadow of a doubt.
Q And in any incident where he says you were authorized you would vote for the death penalty; is that correct?
A If the judge didn’t authorize it I certainly wouldn’t.
Q If he said you were authorized but you didn’t have to?
A Yeah, I would.
Q And would that be regardless of anything the defendant might put up in way of mitigation, why he did it or anything like that, once you found him guilty? Would you, if the judge said you’re authorized and the defendant got up and gave certain reasons for mitigation, would you still vote for the death penalty?
A Right.
Q Regardless even if the judge said although you’re authorized you don’t have to; would you still vote for it?
A Yeah.
MR. WORD: Your Honor, under reversed Witt we would move — reversed Witherspoon —
THE COURT: You understand you’re not required to return a death penalty in any particular situation but you can always recommend a life sentence?
THE JUROR: Yes, sir.
*219THE COURT: Would you consider any mitigating circumstances that would tend to mitigate the crime as far as the punishment is concerned?
THE JUROR: Yes, sir.
THE COURT: I’ll overrule your challenge.
MR. WORD: Your Honor, we, of course, for the record take exception to that.
Appendix B.
The trial record shows the following sequence of events.
On February 27, 1985, Pope filed in Haralson County a “Motion for Funds for the Defense to Secure the Attendance of Out of State Witnesses.” The motion stated that Pope was “prepared to make a detailed statement concerning the necessity for witnesses . . . including the names of the prospective defense witnesses . . .,” and sought a hearing on the matter. No witnesses were named in the motion.
On March 4, 1985, defendant filed with the clerk of the court affidavits from Howe and Buck, which stated that these two witnesses had relevant information about the case but lacked funds to travel to Georgia to testify.
On the same date, a hearing was held on the above motion (and 60 others). Defense attorney Stafford Smith informed the court that affidavits had been received from two out-of-state witnesses. He argued that the affidavits contained enough information to show the necessity for the presence of these two witnesses. The court ruled, “Well, I’ll grant your motion, and we’ll determine what we need to do about getting them here.”
On March 20, 1985, the defense filed an affidavit from Curtis Pope that was similar to the previous ones.
On April 15, 1985, the parties met in Haralson County for the trial of the case. As noted previously, the attempt to select a jury convinced the trial court that a change of venue was necessary. However, prior to the commencement of voir dire, the court held a short Unified Appeal Procedure hearing to rule on any motions not yet disposed of. See Rule III (A) (1) of the Unified Appeal Procedure. Among other matters, Stafford Smith sought to “straighten out what we’re going to do in terms of all our witnesses . . . One has to come from Arizona. One has to come from Texas and two have to come from Florida. It’s going to take a day or two to get them here.” After debating the probable length of the voir dire, the discussion proceeded as follows:
“MR. STAFFORD SMITH: Your Honor, the basic thrust of my question, though, was that your Honor hadn’t ordered funds for these witnesses. They don’t care when they’re coming, but we need to get *220funds at some stage.
“THE COURT: Well, I believe I granted the standard out-of-state witnesses, as to the two, I recall. I don’t recall more than two.
“MR. STAFFORD SMITH: I didn’t understand we got that.
“MR. WORD: I understand you wouldn’t issue the funds until we got to that time, and you would give us sufficient recess to get them here, is what I thought.
“THE COURT: Well, I was under the impression that the statutory out-of-state witness subpoena act specifies the funds, and I believe that’s what I indicated I would pay.
“MR. WORD: Okay. We just wanted to be clear on that. There were a couple of more witnesses — maybe we could take them up now or take them up at a later time — we discovered since the hearing we had on that that we needed to be here to testify as to the punishment phase only, if we get that far. Of course, we could give you their names now, if your Honor wants to.
“THE COURT: Okay. What are their names and what briefly will they testify to. I’ll tell you whether we’ll allow them to be paid by the State.
“MR. WORD: One of them, your Honor, is Charles Jennings, and basically, Mr. Jennings had been in a situation where Mr. Pope was a hero in this particular case, and in a way of mitigation, Mr. Jennings can provide information that Mr. Pope saved his life, basically, and we’d like to bring him.
“THE COURT: Where is he located?
“MR. WORD: He’s in Jacksonville, Florida. I have a phone number and address, if you want that right now.
“THE COURT: No, I don’t need that.
“MR. WORD: And there is a gentleman by the name of Ron Walker, who is a retired chaplain who’s in Trenton, Florida. And I have his name and address, also. And both of those gentlemen basically are on call whenever we notify them.
“THE COURT: And what would be the nature of this gentleman’s testimony?
“MR. WORD: Your Honor, he’s a retired chaplain, and had been with the Florida prison system, and had witnessed one execution and the nature of his testimony would be, in a tasteful manner to describe the procedure in an execution, and that would be the nature of that particular witness.
“Mr. Stafford Smith has one other, I think. You said there was a third one? Okay. That may be only — maybe four, then. The two you knew about and then these two.
“THE COURT: The first one you mentioned, I’ll allow you to use State funds as statutory out-of-state witness fees to get him. I’ll reserve ruling on the second one until I check further into it.”
*221The issue came up once again at a hearing on August 15, 1985, four days before the trial was to begin in Cobb County. It was discussed as follows:
“THE COURT: I think that takes care of all the motions that we have that are pending at this time; is that correct?
“MR. STAFFORD SMITH: Your Honor, there are one or two that you have reserved ruling on until later on in the trial.
“THE COURT: Well, most of them I understand have to do with the punishment part of the trial; is that correct?
“MR. STAFFORD SMITH: That’s correct.
“THE COURT: Is there any reason we need to hear them at this time?
“MR. STAFFORD SMITH: No. I should point out in terms of our out-of-state witness motion, we’re going to have to have time to fly them in.
“THE COURT: If you tell me what you’re particularly concerned about, I’ll tell you what my ruling is right now.
“MR. STAFFORD SMITH: Well, your Honor, you just said you were going to wait until the guilt phase about to determine whether we would need them. You know, I think that’s fine except if you tell us then, and we got to get them in —
“THE COURT: I’ll go ahead and rule on it if — which motion is it of the one hundred and nine that we have?
“MR. STAFFORD SMITH: We’ll come up with it eventually. The only point we wanted to make, we have to have time to get them here. We obviously can’t —
“THE COURT: Well, tell me what these witnesses are going to testify to. I assume this is in the punishment phase, if we get to it; is that correct? You tell me what they’re going to testify and I’ll tell you how I’ll rule as to the admissibility of their evidence.
“MR. STAFFORD SMITH: We filed, your Honor — we filed affidavits as to some of them. And by way of proof, one thing, does your Honor want us to describe them all in front of the State again? We have certain objections to disclosing everything again under the Fourteenth Amendment.
“MR. FOSTER: I’m curious if I’m even going to get to come to this trial.
“THE COURT: If he has a motion, he’s going to present it in open court and you’ll have an opportunity to object to it and present anything in opposition to it that you want.
“MR. STAFFORD SMITH: Right. It’s No. 85, we’ve tracked it down. The witnesses — there were four members of Mr. Pope’s family. Let’s see, there’s a Mr. B. A. Bach [sic].
“THE COURT: I thought I had already ruled on that one. I granted your motion to allow transportation for two witnesses. I be*222lieve one was from Texas and the other one was from Florida; is that correct?
“MR. WORD: Yeah, I think that’s right.
“THE COURT: Now, these were relatives of his to testify in mitigation; is that correct?
“MR. WORD: Yes, sir. And you had reserved ruling on the person that was going to testify that had witnessed an execution from Florida, also.
“THE COURT: Well, I’m not allowing anybody to testify as to witnesses in execution, no matter where it comes from. The only thing in mitigation is the defendant’s character or record or any other circumstances of the offense, just the death penalty in general is something you need to take up with the Legislature and not the Court.
“MR. STAFFORD SMITH: As we said in our motion, just by way of proffer, that we do guarantee he’s not trying to say it’s unconstitutional, he’s trying to describe it under the Sixth Amendment. The jury understands what it is exactly what they’re doing.
“THE COURT: My understanding of mitigating factors or circumstances is the defendant’s character or record or any other circumstances of the offense. It can be anything, but it has to relate to the defendant or the defendant’s background. The generalization on death penalty or excuses or whatever, I’ll not allow testimony on.
“MR. WORD: Your Honor, I’m not arguing with the Court’s ruling, but to make sure it’s clear in the record and so the Court doesn’t think we’re trying to mislead them, this sole issue at penalty, are we going to kill him or are we going to let him have life in prison. And we think the jury is entitled to be educated as to what they’re fixing to do. They know what life in prison means —
“THE COURT: I’m certain they know what death is. So, I’ll let it go at that.
“MR. WORD: That would be our presentation. I understand the Court’s ruling it out.
“MR. STAFFORD SMITH: There was one other witness. Did we get a clear ruling — there was also a B. A. Bach [sic] who’s from Arizona.
“THE COURT: I’m going to allow the two witnesses that I previously authorized to pay the expenses to get them here whoever they might be.
“MR. STAFFORD SMITH: Then I think that’s the end.”
After the August 15 hearing, Pope made no further request for funds to secure the attendance of out-of-state witnesses.