concurring.
I concur in the majority opinion as written, but there are further errors that should be addressed.
I. TRANSFER FROM JUVENILE COURT
The District Court acted within its discretion in transferring Ice to the Circuit Court for trial, but committed prejudicial error in the manner in which it conducted the proceedings.
The principal error occurred the morning of January 19, 1979 in the office of the Powell County Commonwealth Attorney. While Ice’s case was pending in Juvenile Court the District Judge met with the Commonwealth Attorney and a Kentucky State Police detective who was investigating the case, and discussed the case at great length, “two or three hours or maybe long*681er.” The three discussed the entire case, including all evidence collected, statements and interviews conducted to that point in time.
The fact of the ex parte discussion surfaced during the trial and was discussed on motion for a new trial. At that point the Commonwealth Attorney did not deny the discussion, but only presented an unsatisfactory explanation to the effect that the focus of the discussion was on Norvin May-berry. This comment is in direct conflict with the sworn testimony of the State Police detective which indicated much more. In any event, Mayberry’s involvement was an integral part of the Ice case and should not have been discussed ex parte.
In the first place neither the judge nor the Commonwealth should ever have participated in such a conversation. The trial judge should insist that neither the prosecutor nor the defense counsel nor any other person discuss a pending case with the judge ex parte. In such circumstances prejudice must be presumed. In the second place after participating in such a conversation the judge was obliged to recuse himself. KRS 26A.015(2)(b) mandates that a judge recuse himself when he has “personal knowledge of disputed evidentiary facts concerning the proceedings.” This relates directly and particularly to an ex parte proceeding such as took place here. For this reason alone this case should be remanded all the way back to the first stage, the petition pending in Juvenile Court, to proceed once more from that point forward.
Next defense counsel complained that the Juvenile Court judge erred in permitting Ice’s attorney to waive his presence during the KRS 280.170 procedure to consider whether to transfer Ice to Circuit Court. KRS 208, “Juvenile Proceedings: Commitment in Care of Children,” reflects a policy in favor of non-criminal treatment of children. Transfer for trial as an adult is the exception, not the rule. In the circumstances of this case, where the child had been committed for psychiatric evaluation and the testimony and reports before the juvenile judge indicated he suffered from serious mental illness, a judge should make every effort to personally observe the child. If circumstances make his presence in the County difficult or impossible, the judge should consider conducting the hearing in part at the facility where the child is being held. He should see and evaluate the child before making a decision.
KRS 208.140 provides for background investigation of the child before the case is disposed of in Juvenile Court. The kind of investigation required by that section was not performed in this case. The statute requires that “the investigation shall be conducted by volunteer or salaried probation officers of the Juvenile Court or by a suitable public or private agency.” No such investigation was undertaken. The type of testimony that was taken at the juvenile transfer hearing from police officers was not a substitute for the investigation and report required by the statute.
II. CHANGE OF VENUE
After Ice was transferred, indicted and arraigned in Powell Circuit Court, his counsel moved for a change of venue. The trial court’s order granting the change recites that “the Commonwealth’s Attorney then stated that he had doubts a jury could be obtained in Powell to try the case and waived all formalities and presentation of the written motion and affidavit,” agreeing to the motion. Over defense objection, the judge then transferred the case to Wolfe County, an adjoining county in the 39th Judicial District. Thus the trial was held at Campton in Wolfe County rather than at Stanton in Powell County. So far as this case is concerned, the difference lacks substance. The Knox and Ice families lived just off Ky. 15 on the road between Camp-ton and Stanton at a place not far from the county line. The uncontroverted affidavit of defense counsel filed at the time states that “the same state of feeling against the defendant inferentially exists in Wolfe County as it does in Powell County.” The two areas are in fact not only adjacent, but part of an integrated rural community. *682The circumstances that would make Powell unsuitable (which the Commonwealth conceded) would not change. The line between Wolfe and Powell County is an imaginary one drawn on a map and a distinction without a difference insofar as this case is concerned.
The constitution requires that a change of venue “be made to the most convenient county in which a fair trial can be obtained.” Kentucky Constitution § 11. A right so basic as to address the attention of the framers of the constitution must not be facilely disregarded. In a case where change of venue was so obviously necessary that the Commonwealth conceded it, keeping faith with the concept of fair trial required more than lip service. The same problems of publicity and emotion that motivated defense counsel’s request for a change of venue “far enough removed from Powell County, Kentucky, so as to enable the defendant to be free from prejudice or pressures levied upon him and upon the possibility of a fair trial,” existed in Wolfe County. The defendant’s objections were well taken and should have been honored.
Voir dire revealed that almost every jur- or was familiar with the case. Sixteen were excused because of fixed opinions and two others on account of involvement with the victim’s family. The trial judge's report notes that publicity was extensive. Indeed Ice was initially moved to Fayette County because of fears for his safety. The defense counsel, his witnesses, and even a person excused from the jury were subject to threats, intimidation and harassment during the trial. A trial should never have taken place in such an atmosphere.
In Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966), the United States Supreme Court stated at p. 363, 86 S.Ct. at p. 1522:
“Where there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial, the judge should continue the case until the threat abates, or transfer it to another county not so permeated with publicity.”
Sheppard’s conviction was reversed.
So also, in Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961), a case remarkably similar to the present one, the United States Supreme Court reversed a conviction for failure to grant a change of venue.
In Irvin the defendant, indicted for murder, was granted a change of venue to an adjoining county, but denied a second change of venue and a continuance, sought on the ground of local prejudice. He was convicted and sentenced to death. The Supreme Court reversed and remanded expressing the unanimous opinion that he was denied due process of law under the Fourteenth Amendment because the jury in the state trial was not impartial. The fact that it is ultimately possible to seat a jury of citizens whose answers on voir dire do not show they were knowingly or intentionally biased does not deal with the problem nor cure the error.
In Irvin the court quotes the following observation by Chief Justice Hughes in an earlier case:
“Impartiality is not a technical conception. It is a state of mind. For the ascertainment of this mental attitude of appropriate indifference, the Constitution lays down no particular tests and procedure is not chained to any ancient and artificial formula.” 366 U.S. at 724-25, 81 S.Ct. at 1643-44.
The statutes related to change of venue in a criminal action, KRS 452.210-452.350, incorporate the letter and the spirit of the Kentucky constitutional article on change of venue and the U.S. constitutional amendment on due process of law. The Commonwealth is in error in quoting KRS 452.240 (“not more than one change of venue ... in the same criminal or penal action”) as foreclosing a subsequent change of venue from Wolfe County, because the defense had objected to Wolfe County in the first place. This objection was never waived. The order overruling that objection is interlocutory in nature and subject to further change as with other interlocutory orders. We *683should direct transfer of the case to a place sufficiently separated by both distance and character that “a fair trial can be had.”
III. JURY SELECTION
The trial court failed to follow the directions of KRS 29A.070, “Juror Qualification Forms.” KRS 29A.070(1) mandates that “a jury qualification form accompanied by instructions to fill out and return the form by mail or hand delivery to the clerk” be delivered with a summons to each juror. The statute mandates procedures to insure that the forms are completed and returned. Finally, the statute mandates that if the judge does disqualify a juror, he shall record the reason on the qualification form and that such forms (with certain exceptions) “shall be made available to parties or their attorneys.” The painstaking efforts of the legislature to bring about reforms in the methods of jury selection in order to insure a fair and impartial jury and to meet the requirements of due process cannot be circumvented, as they are by anything less than substantial compliance with the statutory mandates. In this case jurors were permitted to refuse to fill out the forms and released by telephone for reasons which would not appear on forms that were not completed. Defense counsel was thus deprived of any opportunity to check on whether jurors were properly excused. Failure to substantially comply with the mandated procedures was erroneous.
IV. OTHER TRIAL ERRORS
In rebuttal to appellant’s evidence supporting the defense of insanity, the Commonwealth called two police officers who had contact with the appellant at different times after the occurrence. These police officers testified that in their opinion Ice appeared “normal.” One went further. Over objection the prosecutor was permitted to ask this witness whether in his work “with the Kentucky State Police” he had “developed some expertise” in judging insanity, and after an affirmative response was permitted to express an opinion that Todd Ice was not insane.
In this jurisdiction a nonexpert witness may give an opinion as to the mental condition of another after an appropriate foundation has been laid by showing of facts “evincing a familiarity” with the accused [Graham v. Commonwealth, Ky., 420 S.W.2d 575 (1967)] or acquaintanceship with the accused [Feree v. Commonwealth, 193 Ky. 347, 236 S.W. 246 (1922)]. In short, we adopted the rule found in 3 Wharton’s Criminal Evidence, § 609 (1973):
“A lay witness may state his opinion of a person’s mental condition if it is shown that he was acquainted with the person in question so intimately and for such a length of time as to be able to make an informed judgment.”
But the facts establishing a foundation for a lay witness relate to acquaintanceship with the accused and are not bolstered by some supposed expertise on the subject of insanity based on experience as a police officer. As a general rule experience as a police officer no more qualifies the witness to express an opinion regarding insanity than it qualifies a police officer to express an opinion regarding who is at fault in an accident. North American Accident Ins. Co. v. McAlister, 290 Ky. 88, 160 S.W.2d 385 (1942); Service Lines, Inc. v. Mitchell, Ky., 419 S.W.2d 525 (1967). The testimony as to police expertise on mental condition was improper.
The prosecutor was permitted to adduce evidence and comment in closing on Ice refusing to answer questions post arrest, thus violating his “Miranda Rights,” and on his failure to testify at trial violating the mandates of Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), Green v. Commonwealth, Ky., 488 S.W.2d 339 (1972), and KRS 421.225. On the next trial the prosecutor should steer clear of questions or comments that impose on these rights.
STEPHENS, C.J., joins in this concurring opinion.