dissenting.
There are three errors that occurred during the trial so significant that this conviction should be reversed. Although the evidence of guilt was overwhelming, it is by no means certain that McQueen would have received the death sentence had these errors not occurred.
First, Juror Sherry Winkler was improperly excused. Apparently, as the trial progressed the trial judge received reports and suggestions from the prosecutor and from unidentified sources impugning her integrity as a juror. She was excused on the basis of rumor and gossip, what could best be described as “scuttlebutt.”
There was a continuing controversy during the trial as to whether she had answered the Witherspoon question with integrity, but absolutely no proof that she had failed to do so. The evidence that she had failed to observe the court’s instructions not to discuss the case with others was equally lacking. At most it suggested she had been approached by others and made noncommital responses. Nevertheless the trial court elected to excuse her at the close of the prosecutor’s case. The trial court stated:
“I think that she has created enough problems on it and obviously she has had some kind of conversations of people saying, oh, are you in the jury, I didn’t think you would be on it, or some such thing as that. Whatever, whatever she intended the impression that has been conveyed is that she, basically, had her fingers crossed when she was qualified to serve as a juror.”
There is nothing in the record to support these conclusions or the action of the trial judge in excusing this juror. In the pervasive atmosphere of a trial, there is some likelihood that the remaining jurors would pick up the undertone that Juror Winkler was excused because she might not be willing to give McQueen the death sentence. A death sentence administered in such circumstances should not stand.
Next, the trial court erred in refusing to strike Juror Leo Johnson for cause during voir dire. There is no way Mr. Johnson could have been considered an acceptable juror after he testified that he was a former neighbor and speaking acquaintance of Linda Rose, a key witness, and a longtime friend of one police officer and close personal friend of another, who were involved in the case as potential witnesses and obviously interested in the outcome. Further he testified he was familiar with the facts of the case and, as a customer of the business where the crime occurred, was more interested in the case than he would otherwise have been. He admitted that he had discussed the case and that he had formed an opinion about the guilt of the defendant. His answers to questions asked to establish that he intended to be fair and impartial regardless of prior knowledge, friendships and opinions simply substitute form for substance. The constitutional right to a fair trial by an impartial jury should be protected by this Court as a matter of substance. U.S. Constitution, Sixth Amendment; Kentucky Constitution, Sec. 11.
Speaking of the need to select impartial jurors, rather than simply to rehabilitate for the record jurors who could not possibly be impartial because of their background, in Irvin v. Dowd, 366 U.S. 717, 81 *526S.Ct. 1639, 6 L.Ed.2d 751 (1961), the United States Supreme Court said:
“Impartiality is not a technical conception. It is a state of mind. For the ascertainment of this mental attitude of appropriate indifference ... procedure is not chained to any ancient and artificial formula.”
366 U.S. at 724-25, 81 S.Ct. at 1643-44.
Irvin v. Dowd, supra, stands for the proposition that a question designed to extract from a prospective juror a promise that he will put aside his preconceptions and try the case fairly is not sufficient basis for us to disregard the obvious in deciding whether the juror can in fact be impartial.
Similar circumstances caused us to reverse Pennington v. Commonwealth, Ky., 316 S.W.2d 221 (1958). In Pennington we said that “credulity would be stretched to the breaking point to say that the juror’s close relationship to Mosley (the principal witness) ... does not practically, or within limits of reality, bring the juror under the classification of being impliedly or presumably biased so as to support a challenge for cause.” 316 S.W.2d at 223.
Finally, the Commonwealth should not have been permitted to introduce evidence of McQueen’s prior criminal history, convictions for pandering and third-degree burglary, as it did during the penalty phase in this case.
The death penalty should not be imposed by the jury because of the defendant’s pri- or criminal history, but because of the aggravated nature of the offense. KRS 532.-025(2)(a) specifies the “aggravating circumstances” for the jury to consider and prior criminal history is not one of them.
I am aware that this Court affirmed the sentence of death in Gall v. Commonwealth, Ky., 607 S.W.2d 97 (1980), where prior criminal history was admitted, but in Gall such evidence was “admitted by stipulation.” 607 S.W.2d at 111. Here the appellant objected to the introduction of this evidence and such objection should have been sustained. We should make it clear that Gall is limited to its facts and not authority for the Commonwealth to introduce prior criminal history as part of its case during the penalty phase of a capital case.
The Commonwealth halfway concedes the point at issue by arguing that the reason for permitting such evidence in this case was in anticipation of a defense request for an instruction on “no significant history of prior criminal activity” as a mitigating circumstance. KRS 532.025(2)(b)(l). The simple answer to this position is that the defense is not entitled to such an instruction absent evidence to support it and had the defense offered any such evidence in this case, then (and only then) the Commonwealth is justified in offering prior criminal history in rebuttal.
Here the Commonwealth managed to bootstrap in before the jury prior criminal history intended solely to aggravate the jury under the pretext that it would rebut mitigating evidence that was not forthcoming. The fact that the jury was later instructed that “no significant history of pri- or criminal activity” would be a mitigating circumstance, were it true, served only to aggravate the situation even more.
Although no Kentucky cases have yet addressed this issue, other jurisdictions have held in death cases that “(t)he burden of establishing the existance of any mitigating circumstance is on the defendant.” State v. Ceja, Ariz., 565 P.2d 1274, 1276 (1977). In Maggard v. State, Fla., 399 So.2d 973 (1981), the Florida Supreme Court reversed a conviction where the prosecution introduced evidence of prior criminal history offered in advance to “rebut” in circumstances similar to the present case. The Florida Supreme Court said:
“Mitigating factors are for the defendant’s benefit, and the State should not be allowed to present damaging evidence against the defendant to rebut a mitigating circumstance that the defendant expressly concedes does not exist.” 399 So.2d at 978.
In the present type of situation there should be no instruction on absence of “sig*527nificant history of prior criminal activity” as a mitigating circumstance and “neither the State nor the defendant should be allowed to argue to the jury the existence or the nonexistence of such mitigating circumstance.” Maggard v. State, 399 So.2d at 978.
The question before us is not whether we believe the death penalty was appropriate in this case, but whether we believe McQueen was tried, convicted and sentenced according to law and by an impartial jury. In my view he was not. Therefore I would reverse the conviction and order a new trial.