dissenting.
Appellant was convicted of one count of second degree murder in violation of § 6-2-104, W.S.1977, and one count of attempted second degree murder in violation of § 6-l-301(a)(i) and § 6-2-104, W.S.1977. He was sentenced to the Wyoming State Penitentiary for two concurrent terms of 35 years to life. On appeal, he contends that the trial judge violated his constitutional right to an impartial jury by failing to excuse two biased jurors for cause and by directing threatening and embarrassing remarks to jurors, the effect of which was to intimidate the panel and cause them to stop admitting bias or anything that might displease the court. Unlike the majority, I believe that both arguments have merit.
The atmosphere in which voir dire was conducted in this case is best illustrated by the following exchanges between the court, the jury and counsel:
“MR. HONAKER: Your Honor-
*1052“THE COURT: You’re going into such detail with each one of these people, who they know, what they know. It’s unbelievable to me. You’ve already asked— they’ve already said that they didn’t know enough of these people to influence them in any way. I mentioned that to you about four times already.
* * * * * *
“MR. HONAKER: Your Honor, during the State’s voir dire, the State asked if any of these jurors knew any of these witnesses and almost every hand was raised and almost everybody knew more than one. And as of this time, we don’t have any idea of who they know or who they don’t know and what the nature of the relationships are.
* * * * * *
“THE COURT: I’m going to sustain the objection. Ladies and gentlemen, Mr. Moneyhun read to you the list of witnesses; do you recall that? All right. Mr. Moneyhun asked you if your knowledge of any of those witnesses would influence you in your determination of this case. Would it?
“(Entire jury panel responded ‘no.’)
“All right. That’s it as far as that line of questioning is concerned.”
Later the court relented and advised defendant’s counsel:
“I’m going to let you do this. I’m going to let you ask each juror individually whether or not their knowledge of any of the witnesses would affect their ability to make a — or render a fair verdict, without going into any more detail than that. You ask each one of them individually that question.”
Then, even later, the court protested:
“How many opinions are you going to try to get from them? You’re asking their opinion on a million things.”
When Mr. Peterson was excused for cause, the court observed:
“I think he’s trying to get off of jury duty is what I really think.. You’re excused for cause * * The court also made derisive remarks about Mr. VonGuten’s personal convictions with respect to self defense when it said to Mr. VonGuten, “I don’t think you’re thinking well.” Mr. VonGuten felt compelled to defend himself, replying: “Well, I’m just bringing my personal feelings into the courtroom.”
The judge refused a recess which would have enabled the jurors to use the restrooms. That must have speeded up voir dire considerably. Thus, the following occurred. A juror during voir dire said:
“Your Honor, could I be excused to go to the bathroom for a second, or is this going to drag out for a while more? Before my bladder^—
“THE COURT: Go ahead.
“MRS. LANE: May I, too, sir?
“THE COURT: Yes, go ahead.
“MR. MONEYHUN: May I, too, Your Honor?
“MR. HONAKER: Your Honor, could we take a ten-minute recess?
“THE COURT: No, we’re going to continue until this is done.
“MR. HONAKER: Could I be excused for just a minute?
“THE COURT: Yes, go ahead.”
The totality of the above demonstrates the kind of closed atmosphere which very likely will compromise the voir dire process.
DENIAL OF CHALLENGE FOR CAUSE In this atmosphere jury voir dire proceeded. Three jurors who were co-employees of the deceased victim were called and questioned. The voir dire of the first juror, Mr. Peterson, was as follows:
“MR. HONAKER: Your Honor, I’d challenge this juror for cause.
“THE COURT: Mr. Peterson?
“MR. PETERSON: Yes.
* * * * * *
“THE COURT: Don’t you think you could sit here and listen to that evidence and decide on the evidence which you hear?
*1053“MR. PETERSON: I’m not sure. I really don’t know, Your Honor, because— “THE COURT: Can’t you sit there and find out?
“MR. PETERSON: I don’t think I can be fair in this case because of my familiarity with Mr. Richmond [the victim].
* * * * * *
“THE COURT: Well, I’m still not going to excuse you for cause simply because you contradicted yourself about five times.
“MR. PETERSON: I haven’t meant to be. I know the man; I felt I know him well, and I don’t feel that I can be fair to the Defendant in this case from me knowing the man that he killed.”
This juror was excused when the prosecutor consented to his release by stating:
“Your Honor, if it please the Court, in the interest of fairness and getting this thing moving, State would stipulate that he could be excused for cause.
“THE COURT: I think he’s trying to get off of jury duty is what I really think. You’re excused for cause. Call another name, please.”
The next two jurors, who were also co-employees of the deceased victim, expressed personal doubts about their impartiality but were not excused for cause. Mr. Shupe, a friend and co-worker of the victim for seven years, admitted that it would be difficult for him to be fair because he was upset about his friend’s death. In response to questions from defense counsel, he said:
“MR. SHUPE: I’m a brake and switch-man.
“MR. HONAKER: Do you know what Mr. Richmond did for the railroad?
“MR. SHUPE: He was also a brake and switchman.
******
“MR. HONAKER: And did you begin working together with Jim Richmond in October of 1977?
“MR. SHUPE: Yes, sir.
******
“MR. HONAKER: And did you socialize with him as well?
“MR. SHUPE: On occasions I had a drink with him.
“MR. HONAKER: He was a friend of yours; is that correct?
“MR. SHUPE: Yes.
******
“MR. HONAKER: If you were on trial, would you feel comfortable having a close friend of the person that was killed sitting on your jury?
“MR. SHUPE: No.
“MR. HONAKER: Why not?
“MR. SHUPE: There’s always that doubt that whatever the verdict was, it could have been different. You never know what another person’s thinking.
“MR. HONAKER: What are you thinking right now?
“MR. SHUPE: I have some doubt about myself.
******
“THE COURT: Sir, despite your knowledge of Mr. Richmond, do you believe that you could render a fair and impartial verdict on the evidence you hear in this courtroom and put aside any feelings you might have for Mr. Richmond?
“MR. SHUPE: I can try, Your Honor.
“THE COURT: Do you think you can do it?
“MR. SHUPE: Yes.
“THE COURT: All right. I’m not going to permit the challenge for cause.”
Defense counsel was forced to use a peremptory challenge to remove Mr. Shupe from the jury.
The second juror who expressed a bias during voir dire was Mrs. Drysdale, who was also a co-worker of the victim. In twenty-one different replies to voir dire questions she expressed uncertainty about her ability to fairly judge appellant. She repeatedly suggested that her acquaintance with the victim might influence her. Twice she said that the evidence would have to be “overwhelming” before she could find that appellant acted in self-de*1054fense. The following is representative of what was said:
“MR. HONAKER: Can you kind of tell me how well you knew Jim Richmond, in some detail?
“MRS. DRYSDALE: Well, I didn’t know him that well. A couple of my girlfriends had gone out with him. And I just saw him day to day at work. I’m a clerk; he’s a brakeman.
******
“MR. HONAKER: How do you feel — if you were sitting over there and you were the Defendant, would you be comfortable with a person in your frame of mind sitting on your case?
“MRS. DRYSDALE: I don’t think so.
“MR. HONAKER: Tell us why you wouldn’t be comfortable.
“MRS. DRYSDALE: I guess I’m prejudiced because I knew him. I don’t know.
“MR. HONAKER: Your Honor, I think based on her answers, I challenge for cause.
“THE COURT: Mrs. Drysdale, I don’t know whether you understand what’s going on here or not. What I want to know is this: Do you think you could sit here and listen to the evidence brought forth in this court and decide the case solely on that evidence, pursuant to the instructions of the Court given to you on the law?
“MRS. DRYSDALE: I think I could, yes.
******
“MR. HONAKER: But why would it be that you wouldn’t be comfortable with a juror of your frame of mind sitting on your case?
“MRS. DRYSDALE: It’s just like I said before, because I knew him, you know. I guess the evidence would have — I don’t know.
“MR. HONAKER: Because you knew him, you think the evidence would have to what?
“MRS. DRYSDALE: I said the evidence would have to be overwhelming.”
The trial court denied appellant’s challenge for cause, and Mrs. Drysdale sat on this jury and voted to find defendant guilty.
This court sees this case as a “sequel to Gresham v. State,” Wyo., 708 P.2d 49 (1985). I do not. In Gresham one juror said he was biased, one said he could not hear, and one — a co-employee of defendant — said she could not fairly judge the facts of the case. The judge excused for cause only the last juror with the statement:
“I can’t understand people like you, Miss Pivik, particularly with your knowledge of the law and your association with the law for so many years in Rock Springs. You’re excused for cause.” Id. at 54-55.
But in Gresham there was no objection, and we considered only whether there was plain error. In this case counsel did object stating:
“First, the Defendant was forced (to waste a peremptory challenge on Mr. Shupe, a close personal friend and fellow worker with the deceased, James Richmond. The voir dire exam of Mr. Shupe revealed he had very strong personal feelings for Mr. Richmond, and was extremely upset by his death. It was error for the Court to refuse to excuse Mr. Shupe for cause.
“Second, Mrs. Drysdale now sits on this jury and will be a part of its deliberations and verdict. The voir dire examination of Mrs. Drysdale revealed that she also knew Mr. Richmond through her work with him at the Union Pacific yard; that she was prejudiced and that she would not want a juror of her frame of mind sitting on her own case. Her extreme insecurity about being fair and impartial was overcome by the tone and forcefulness of the Court’s questioning of her. Her questionnaire also indicates that her husband is a brakeman for Union Pacific. And we know from Mr. Shupe’s answers on voir dire that the Union Pacific brakemen worked closely together and rely on each other on a weekly, if not a daily basis.
*1055“Mr. Richmond was employed as a brakeman at Union Pacific for seven years. “The Defendant exhausted all peremptory challenges and re-newed his challenge of Mrs. Drysdale for cause.”
I see this case as similar to Patterson v. State, Wyo., 691 P.2d 253 (1984), cert. denied — U.S. -, 105 S.Ct. 2048,. 85 L.Ed.2d 311 (1985), wherein we said:
“The juror steadfastly maintained his prejudice against those involved in marijuana, even to the extent of asserting that such would make him partial and a juror whom he would not want to decide a case in which he was a defendant. Yet he agreed to act only on the evidence and according to the instructions.
“Ordinarily, we defer to the action of the trial court in connection with jury selection. In this instance, however, the bias or prejudice of juror Taylor was. definitely evidenced. * * * The error is manifest.” (Citations and emphasis omitted.) Id. at 256.
And so it is in this case; the error is also “manifest.” These jurors honestly said they could not be impartial, but that as decent, honest persons they could be fair and sit on the case. There is something wrong with a process by which this is accomplished, and I have a deep feeling that there is something terribly wrong with forcing a man to be tried upon two first degree murder charges by a jury containing co-employees of the victim — co-employees who, in response to voir dire questions, said they should not sit on the jury. What was at stake for appellant in this case was two sentences of 35 years to life in the penitentiary.
In a similar case, it was said that
“where the only real issue is a sentence of life or a sentence of death, it can hardly be said that a 17 year co-worker of the father of the slain policeman, who has taken the time to give his condolence to the father, is an unbiased juror. . Neither should an employee of a law enforcement agency be considered a competent juror where the killing results from an assault upon an officer of the law while acting in the scope of his employment. Robert Taake did not qualify as an impartial juror * * *.
“[Wjhere the juror testifies that he is not one hundred percent sure that he can lay aside his previous impressions or opinions, we do not see how any discretion on the part of the court can add any assurance that the verdict will be rendered only upon the evidence presented in court.” Swindler v. State, 264 Ark. 107, 569 S.W.2d 120, 123 (1978).
In Nailor v. People, 200 Colo. 30, 612 P.2d 79 (1980), a potential juror said:
“I don’t think I should sit on the jury. A week ago I had my car broken into and burglarized. And it was a bad experience and I don’t think it would be fair. I have been thinking about it all night and I don’t think I could be fair.
******
“The trial court here abused its discretion by failing to excuse this potential juror. There was no dispute here about the fact that the juror doubted she could be fair because of her recent ‘bad experience.’ From this clear expression of bias, it would be difficult for a trial court to assume that such a juror could render an impartial verdict. Justice would have been served by excusing this potential juror.” Id. at 80.
When a prospective juror said he would “prefer not to judge the case of his close personal friend,” it was proper that he be excused, State v. Albert, La., 381 So.2d 424, 429 (1980), and it was held error to refuse to excuse a juror for cause where he was unsure whether he could be impartial. State v. Moore, Utah, 562 P.2d 629 (1977).
I cannot agree with the majority that Mr. Shupe and Mrs. Drysdale were impartial jurors just because they succumbed to the trial court’s pressure and said they could be fair. They knew the deceased personally and had heard co-workers discuss the case. Considering the nature of those interactions, it is likely that they had real biases. There is no indication that their expressions of bias were a pretext to es*1056cape jury duty. There were surely others who could have served on this jury who were not co-employees having a personal relationship with the victim. The court refused to excuse either Mr. Shupe or Mrs. Drysdale for cause. A trial court’s erroneous denial of a challenge for cause is prejudicial when it forces the challenging party to use a peremptory challenge which could otherwise have been used to excuse another juror. Patterson v. State, supra, 691 P.2d at 256.
An abuse of discretion occurs when a court acts in a manner that exceeds the bounds of reason under the circumstances. When there is no reasonable basis upon which a court could make its ruling, there is an abuse of discretion; and in voir dire it is essential that the court always exercise its discretion consistent with essential demands of fairness. Gresham v. State, supra, 708 P.2d 49; Jahnke v. State, Wyo., 682 P.2d 991 (1984). I would hold the trial court abused its discretion when it refused to excuse Mr. Shupe and Mrs. Drysdale for cause.
INTIMIDATING ATMOSPHERE
Appellant contends also that the trial court created an atmosphere in which potential jurors were intimidated and afraid to express bias and prejudice which resulted in his being denied a fair trial. The majority recognizes the potential for this occurring when in its opinion it states:
“In this case the judge also made unnecessary comments such as his final statement to Peterson and his comment that YonGuten was not ‘thinking well.’ ”
and
“We are constrained to express our concern about intemperate remarks by members of the trial bench in connection with voir dire examination. While it may not be likely that such remarks would deprive a party of his right to a fair and impartial jury, that possibility cannot be completely discounted. Inevitably they will provide a basis for an appeal complaining of such conduct.”
The court then concludes that potential jurors were not intimidated because four of the next ten expressed their concerns about serving as jurors. But what of the other six jurors? Can we ever know how they might have responded to voir dire questions in a more free and open atmosphere?
There are many jurors who are not assertive enough to overcome the kind of judicial pressure exerted in this case. The following statements from Justice Rose’s dissent in Gresham v. State, supra, 708 P.2d at 57, 59, are apropos:
“When the voir dire procedure penalizes open and honest responses from venire persons, no meaningful exploration of biases and prejudices can occur, and the right of the accused to a fair trial is thwarted.
* * * * ⅜ *
“While we cannot know with certainty that one or more of these individuals harbored feelings and opinions inconsistent with a fair trial, neither can we say that none of the jurors held such biases. Appellant in this situation was denied the meaningful exercise of his peremptory challenges as well as his challenges for cause. Accordingly, the voir-dire process failed to serve its intended purpose of insuring appellant a trial before unbiased and unprejudiced jurors.”
The majority also excuses the trial court’s intimidating conduct, to the extent it affected appellant’s peremptory challenges, by clinging to the illogical rule that the only purpose of voir dire is to discover grounds for challenges for cause. As I stated in my dissent in Jahnke v. State, supra, 682 P.2d at 1047:
“Common sense tells us that peremptory challenges were intended to provide an additional safeguard to the required fair trial. They cannot be exercised in a vacuum or by guess and conjecture, and accomplish this purpose. The litigants, therefore, should have as full knowledge as possible of prospective jurors to per*1057mit an intelligent decision in the selection process.”
My view is supported by many authorities. For example, § 15-2.4 of the American Bar Association Standards for Criminal Justice (2nd ed. 1982) states:
“A voir dire examination should disclose grounds for challenge for cause and facilitate intelligent exercise of peremptory challenges. ” (Emphasis added.) See also State v. Peacher, W. Va., 280 S.E.2d 559 (1981); State v. Brown, Mo., 547 S.W.2d 797 (1977).
VOIR DIRE GUIDELINES
There will always be some veniremen who try to avoid jury duty by claiming they are biased. But there are better ways of dealing with the problem than tainting the entire jury panel. Patterson v. State, supra, 691 P.2d at 271 (Brown, J., specially concurring). Trial judges may inform the jurors that those who are unable to serve on the present panel will be eligible for selection on the next case. Section 1—11—123, W.S.1977. The judges can emphasize the purpose and importance of jury service. And, if necessary, they can reprimand the shirkers in chambers after they are excused.
A criminal defendant has a right to an impartial jury. Collins v. State, Wyo., 589 P.2d 1283, 1289 (1979); Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961). It is the trial judge’s duty to make sure that he gets one. Redwine v. Fithugh, 78 Wyo. 407, 329 P.2d 257, 260 (1958). In fact, the United States Supreme Court has said that a trial judge must be zealous in protecting the rights of the accused during jury selection. Dennis v. United States, 339 U.S. 162, 70 S.Ct. 519, 521, 523, 94 L.Ed. 734 (1950). A trial judge should not allow either his own impatience or his annoyance with jurors to interfere with his responsibility to ensure an impartial jury. I would have reversed and remanded for a new trial.