People v. Ketchel

456 P.2d 660, 71 Cal. 2d 635, 79 Cal. Rptr. 92, 1969 Cal. LEXIS 277

• Court: California Supreme Court
• Decided: July 7, 1969
• Docket: Crim. No. 10905
• Status: Published

Opinions

TOBRINER, J.

Donald Floyd Ketchel and Thomas Edward Sears were found guilty of first degree murder and first degree robbery. The jury imposed the death penalty for the murder.' On appeal, we reversed the judgments insofar as they related to the death penalty. (People v. Ketchel (1963) 59 Cal.2d 503 [30 Cal.Rptr. 538, 381 P.2d 394],)¹ Upon retrial, the jury again imposed the death penalty. We reversed these judgments, both as to guilt and penalty, because confessions inadmissible under Escobedo v. Illinois (1964) 378 U.S. 478 [12 L.Ed.2d 977, 84 S.Ct. 1758], and People v. Dorado (1965) 62 Cal.2d 338 [42 Cal.Rptr. 1693, 398 P.2d 361], were allowed into evidence at their trial on guilt. (People v. Ketchel (1966) 63 Cal.2d 859 [48 Cal.Rptr. 614, 409 P.2d 694].)

The instant appeal arises from defendants’ third trial. The jury found Ketchel and Sears guilty of robbery in the first degree and murder in the first degree. The jury fixed the penalty for the murder as death for Ketchel and life imprisonment for Sears.² Sears’ appeal was consolidated with Ketchel’s automatic appeal. (Pen. Code, § 1239, subd. (b).)

We summarized at some length in our first opinion the factual circumstances giving rise to the convictions. (People v. Ketchel, supra, 59 Cal.2d 503, 514-516.) In short, defendants robbed a grocery store in Monterey Park on June 9, 1961. As they fled from the market with about $1,000 in cash, George Elder, an off-duty policeman, pursued them. In the ensuing gun battle, Elder was shot and killed.

Defendants make .the following- six contentions in this proceeding. First, the trial court erred in refusing- to give instructions requested by Sears on diminished capacity. Second, admission into evidence of eye-witness identifications emanating from unconstitutionally conducted police lineups requires reversal. Third, the prosecuting attorney committed prejudicial misconduct in his use of a .22 caliber pistol throughout the trial. Fourth, defendants were denied their constitutional right to a fair and impartial jury. Fifth, the death penalty, as applied in California, constitutes cruel and unusual punishment in violation of the California and United States Constitutions. Sixth, defendant Ketchel was denied a fair penalty trial in that no evidence, beyond the facts of the offense previously introduced at the guilt phase, was advanced in his behalf.

We shall explain that Witherspoon v. Illinois (1968) 391 U.S. 510 [20 L.Ed.2d 776, 88 S.Ct. 1770], requires the reversal of the judgment against Ketchel as to penalty. In view of this conclusion we do not discuss Ketchel’s further attack upon the penalty trial set forth as the fifth and sixth points listed supra. Further, we shall specify why we have rejected defendants’ remaining conditions.

1.' Instructions on Diminished Capacity

As part of Sears’s defense, his brother, H. B. Sears, testified that both defendants drank beer between 7 and 9 p.m. on the night of the robbery. The brother stated that in his opinion defendant Sears was intoxicated during the entire two hours.

Dr. Alberto Marinacci testified for defendant Sears. Dr. Marinacci stated that he had administered an electroencephalographic test to Sears in 1963 and concluded that Sears’s brain functioned normally. At the time of the instant trial, in July 1966, he had run the same test after Sears had consumed two ounces of 86 proof vodka. The results showed that “alcohol in this individual will stir up certain brain cells to discharge abnormal function, which may render the patient, may cause the patient to have abnormal behavior.” Sears “may and may not” be “aware of what he is doing” and “have conscious control over what he is doing” after consuming alcohol. Dr. Marinacci admitted, however, that “in order, to tell what the effect alcohol actually would have on Tom Sears, it would be necessary ... to have a history of him. ’ ’

Apparently concluding that this testimony east some doubt on the ability of Sears to formulate the requisite criminal state of mind, the trial court submitted that question to the jury under the following instructions. “Murder which is committed in the perpetration or attempt to perpetrate robbery is murder of the first degree, whether the murder was intentional, unintentional or accidental.” “In the crime of robbery of which the defendants are accused . . . , a necessary element is the existence in the mind of a defendant of the specific intent to permanently deprive the owner of his property. If the evidence shows that a defendant was intoxicated at the time of the alleged offense, the jury should consider his state of intoxication in determining if defendant had such specific intent.” The court also instructed the jury that, if it found that the homicide was not a direct causal result of robbery, it must nevertheless determine if defendants committed murder, manslaughter, or no crime at all. The court then defined murder and manslaughter without reference to the felony-murder rule.

These instructions correctly state the governing law. In cases in which the prosecution advances a felony-murder theory, defendant is entitled, upon a sufficient factual showing, to instructions negating- a conviction on a felony-murder theory if, at the time of the alleged offense, defendant could not form the specific intent — here, the intent “to permanently deprive the owner of his property ’ ’ — that serves as a necessary element of the felony charged. (Cf. People v. Ford (1966) 65 Cal.2d 41, 58 fn. 9 [52 Cal.Rptr. 228, 416 P.2d 132] ; People v. Ford (1964) 60 Cal.2d 772, 798-799 [36 Cal.Rptr. 620, 388 P.2d 892] ; People v. Fortman (1967) 257 Cal.App.2d 45, 51-52 [64 Cal.Rptr. 669].) In the instant case, the instructions to ‘ ‘ consider his state of intoxication in determining if defendant had such specific intent” served this purpose of informing the jury that the absence of a specific intent to rob effectively rebutted the felony-murder theory.

Defendants, in resisting this analysis, rely primarily on the text of Penal Code section 189, which reads in part: “All murder which is . . . committed in the perpetration or attempt to perpetrate . . . robbery ... is murder of the first degree . . . .” They contend that the initial reference to "murder” in this section must be taken literally and that, since murder is defined as an unlawful killing with malice aforethought (Pen. Code, §187), the prosecution must therefore prove that defendants harbored malice, not merely that they possessed the specific intent to commit robbery.

This court has rejected the proffered analysis on numerous occasions. "[W]hen one enters a place with a deadly weapon for the purpose of committing robbery, malice is shown by the nature of the attempted crime, and the law fixes upon the offender the intent which makes any killing in the perpetration of or attempt to perpetrate the robbery a murder of the first degree.” (People v. Coefield (1951) 37 Cal.2d 865, 868 [236 P.2d 570] ; see also, e.g., People v. Washington (1965) 62 Cal.2d 777, 780-781 [44 Cal.Rptr. 442, 402 P.2d 130]; People v. Sears (1965) 62 Cal.2d 737, 745 [44 Cal.Rptr. 330, 401 P.2d 938].) In short, the law presumes malice aforethought on the basis of the commission of the felony.

To buttress their argument, defendants rely on the following language contained in an instruction approved in People v. Conley (1966) 64 Cal.2d 310 [49 Cal.Rptr. 815, 411 P.2d 911], "Malice is an essential element of either degree [first or second] of murder. Therefore, if you find that the defendant did not harbor malice because of his diminished capacity, or have a reasonable doubt whether he harbored malice, you cannot find’ him guilty of a higher offense than manslaughter.” (64 Cal.2d 310, 325, fn. 4.) In Conley, however, this court specifically limited its approval of the quoted 'instruction to instances in which the trial court instructed the jury on culpability for homicides not falling within the felony-murder rule.

2. Constitutionality of Eye-Witness Identifications

The prosecution’s case rested primarily on eight eyewitnesses to the robbery who identified Ketchel and Sears as the guilty parties. Each of these witnesses had attended at least one police lineup at which they were requested to designate the robbers. Ketchel and Sears, who apparently participated in each lineup, were not represented by counsel at any of these proceedings.

Defendants rely on the recent Supreme Court cases of United States v. Wade (1967) 388 U.S. 218 [18 L.Ed.2d 1149, 87 S.Ct. 1926], and Gilbert v. California (1967) 388 U.S. 263 [18 L.Ed.2d 1178, 87 S.Ct. 1951], which hold that in-court identification by witnesses to whom the accused was exhibited before trial in the absence of counsel must be excluded, with certain exceptions not relevant here. They recognize that the Supreme Court has held that Wade and Gilbert are not retroactive (Stovall v. Denno (1967) 388 U.S. 293 [18 L.Ed.2d 1199, 87 S.Ct. 1967]), but they urge that, as a matter of discretion, we adopt a more stringent standard and make these rulings retrospective. (Cf. People v. Rollins (1967) 65 Cal.2d 681 [56 Cal.Rptr. 293, 423 P.2d 221].) We have, however, considered this contention and rejected it. (People v. Feggans (1967) 67 Cal.2d 444, 448-449 [62 Cal.Rptr. 419, 432 P.2d 21].) Accordingly, since the lineups at issue did not occur after June 12, 1967, defendants’ contention based on denial of the right to counsel lacks merit. Nor does anything in the record suggest that the police conducted the lineups in such an unfair manner as to violate due process of law (cf. People v. Caruso (1968) 68 Cal.2d 183 [65 Cal.Rptr. 336, 436 P.2d 336]).

3. TJse of the .22 Caliber Gun by the Prosecutor

During the course of the trial, the prosecutor used, for illustrative purposes, a .22 caliber gun, apparently taken from defendant Ketchel but not identified to the jury as having been so obtained. Several witnesses to the robbery stated that Ketchel was armed with a weapon similar in appearance to the gun held by the prosecutor, and one witness testified that the weapon held by Ketchel looked like a .22 caliber gun. One of the bullets recovered from the deceased was a .22 caliber bullet.

Defendant Ketchel argues that he suffered prejudicial error in that the prosecutor used this .22 caliber pistol throughout the trial as if it were Ketchel’s gun an,d had fired one of the fatal shots. Ketchel argues that the gun was obtained as a result of an illegal search and seizure and concludes that the prosecution should not have been permitted to introduce it into evidence or otherwise identify it as belonging to him.

Prior to trial, however, Ketehel’s attorney’had agreed that the prosecutor could use the gun for illustrative purposes at the trial. The prosecutor acted pursuant to this agreement; in-adducing testimony that the illustrative .22 caliber g.un resembled the one used by Ketchel and that a .22 caliber bullet lodged in the deceased officer, the prosecutor merely attempted to persuade the jury to infer that Ketchel fired a fatal shot. Defendant’s present claim of error in this regard does not merit our consideration because of his waiver prior to trial of any objection to such use. We do not find that the .'prosecutor suggested to the jury that the gun shown to the witnesses was in fact .Ketchel’s.

4. Denial of a Fair and Impartial Jury

During the voir dire several prospective jurors who expressed conscientious scruples as to the death penalty asserted that they nevertheless could reach an impartial decision as to guilt. The trial court excused these jurors for cause. Defendants contend that this procedure violated their constitutional right to a fair and impartial’jury. They argue that persons without scruples as to the death penalty are ‘‘more rigid,” “more punitive,” and “less humanitarian” than those with such scruples. Accordingly, they assert, the practice of excusing scrupled jurors from the guilt trial leaves the jury more likely to convict defendant than a jury chosen from a cross-section of the community. They conclude that a jury so selected could not constitutionally convict them.

We have rejected precisely this argument on numerous occasions, most recently in In re Anderson (1968) 69 Cal.2d 613 [73 Cal.Rptr. 21, 447 P.2d 117]. (See also People v. Gonzales (1967) 66 Cal.2d 482, 497-499 [58 Cal.Rptr. 361, 426 P.2d 929]; People v. Smith (1966) 63 Cal.2d 779, 789 [48 Cal.Rptr. 382, 409 P.2d 222]; People v. Gilbert (1965) 63 Cal.2d 690, 711-712 [47 Cal.Rptr. 909, 408 P.2d 365], revd. on other grounds Gilbert v. California, supra, 388 U.S. 263.) In the absence of more persuasive documentation of defendants’ contention, we must agree with the United States Supreme Court’s conclusion on this same point: “We simply cannot conclude, either on the basis of the record now before us or as a matter of judicial notice, that the exclusion of jurors opposed to capital punishment results in an unrepresentative jury on the issue of guilt or substantially increases the risk of conviction.” (Witherspoon v. Illinois, supra, 391 U.S. 510, 517-518 [20 L.Ed.2d 776, 782].)

The judgment imposing the death sentence on defendant Ketchel must be reversed, however, because the method of determining whether prospective jurors with conscientious scruples as to the death penalty should be excused for. cause did not comply with the guidelines laid down in Witherspoon v. Illinois, supra, 391 U.S. 510.³ In Witherspoon. the United States Supreme Court held that a “sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty .or expressed conscientious or religious scruples against its infliction.” (P. 522 [20 L.Ed.2d at pp. 784-785].) The court excepted from this ruling only prospective jurors who “made unmistakably clear . . . that they would automatically vote against the imposition'of capital punishment without regard to any evidence that might be developed at the trial of the case before them. ...” (P. 522, fn. 21 [20 L.Ed.2d at p. 785].)

Although 11 jurors were excused for cause because of conscientious scruples as to the death penalty, we shall limit our discussion to the error in the voir dire of Mrs. Nell D ’Arcy.

We set forth the complete voir dire of Mrs. D ’Arcy:

“Q. [by the Court] Mrs. D’Arcy, have you served on a jury before ?

“A. No, your Honor.

! ‘ Q. This is your first experience ?

“A. Yes.

“Q. And you have heard the general questions that have been asked concerning knowledge of witnesses and parties and attorneys. I take it that you know none of the parties or the witnesses; is that correct ?

“A. That is correct.

‘ ‘ Q. And you never heard of this transaction ?

‘ ‘ A. That is correct.

“Q. And if you felt from the evidence that this was a proper case for the imposition of the death penalty, could you vote for the imposition of the death penalty if you believed that it was a proper case ?

“A. No, your Honor, I could not.

“Q. You' believe that you entertain such a conscientious objection that even in .a proper case that you could not impose the death penalty, assuming it was — ■

“A. Ido.

‘ ‘ The COURT: Do you have any challenges ?

“Mr. Lewis [deputy district attorney] : — for cause, your Honor.

“Mr-. Ettinger [counsel for defendant Sears] : May I ask my question ?

“The Court: Very well.

“Mr. Ettinger: Mrs. D’Arcy, do you feel that you would be able, realizing that there are two parts to the trial, you would be able to render a verdict as to the question of guilt or innocence of the defendants %

“ JuROR, D’Aroy: Yes.” (Italics added.)

The court then granted the prosecution’s challenge for cause.

The use of the test of a “proper case” to determine whether the juror believes he cannot render a death penalty-verdict has been specifically condemned in Witherspoon. Thus, the Supreme Court of the United States has stated: “As the voir dire examination of this venireman illustrates, it cannot be assumed that a juror who describes himself as having ‘conscientious or religious scruples’ against the infliction of the death penalty or against its infliction ‘in a proper case’ (see People v. Bandhauer, 66 Cal.2d 524, 531, 426 P.2d 900, 905) thereby afSrms that he could never.vote in favor of it or that he would not consider doing so in the ease before him.” (Italics added.) (Witherspoon v. Illinois, supra, 391 U.S. 510, 515-516, fn. 9 [20 L.Ed.2d 776, 781].)

Indeed, the very procedure which the Supreme Court condemned in Witherspoon involved the use of the misleading terminology of the “proper case.” Thus in describing the Illinois procedure, the Supreme Court points out “[t]hirty-nine veniremen, including four of the six who indicated that they did not believe in capital punishment, acknowledged having ‘conscientious or religious scruples against the infliction of the death penalty’ or against its infliction ‘in a proper case’ and were, excluded without any effort, to find out whether their scruples would invariably compel them to vote against capital punishment.” (Italics added.) (Pp. 514-515 [20 L.Ed.2d at p. 781].)

As Witherspoon explains, in substance, the danger of this “proper case” terminology lies in the ambiguity it necessarily lodges in the mind of the prospective juror. The venireman does not know what the law contemplates as a “proper case” for the infliction of the death penalty; he does not know whether the law establishes any standards for the determination of a “proper case”; he does not know what the judge may regard as a “proper case.” As an example, he may believe that the law calls for the death penalty in a simple case of rape. The' venireman may conclude that he could not vote for a death penalty in such a “proper ease” of rape and therefore that he should not serve. Yet that venireman is not one who “would automatically vote against the infliction of capital punishment without regard to any evidence that might be developed at the trial, of the case before [him].” (Witherspoon v. Illinois, supra, 391 U.S. 510, 522, fn. 21 [20 L.Ed.2d 776, 785].)

The broad designation of “a proper case” for the death penalty can cover a panoply of cases ranging from the non-homicidal offense, of rape to the most horrendous murder, while between these extremes there will lie a countless variety of other cases. To which of this multitude of offenses does the term apply? To which will the prospective juror think it applies? As Witherspoon explains, “veniremen . . . cannot be excluded for cause simply because they indicate that there are some kinds of cases in which they would refuse to recommend capital punishment.” (Italics added.) (P. 522, fn. 21 [20 L.Ed.2d at p. 785].)⁴ We submit that the use of the “proper case” test tends to exact this result. As Witherspoon further states-. “What matters is how [the language] might be understood — or misunderstood — by prospective jurors.” (P. 516, fn. 9 [20 L.Ed.2d at p. 781].)

This court has held, however, that an inquiry of a venireman using- the terms “proper case” does not automatically invalidate the dismissal of a prospective juror for cause. Thus in People v. Varnum, 70 Cal.2d 480 [75 Cal.Rptr. 161, 450 P.2d 553], the trial court had on numerous occasions fully explained to the panel that the determination of what was a proper case for the imposition of the death penalty was entirely within the discretion of each individual juror. Upon meticulous analysis of the entire preceding voir dire of jurors in the context of the questions asked a particular venireman, we held that the trial court properly excused her for cause even though the court in eliciting her attitudes on capital punishment had used the term “proper ease.” We held that: ‘1 Our task requires us to assess the responses of the venireman in the full context of that portion of the court and counsels’ voir dire examination of the entire panel conducted during the time said venireman was present in the courtroom and until the time he or she was excused for cause.” (Supra, p. 492-493.)

The following circumstances persuaded us in Yarnurn that the venireman who was excused for cause understood that it lay within her sole discretion to determine what was' a “proper case.” Thus in Yarnurn the court asked her: “ ‘And it is your feeling at the present time, Mrs. Bronsal, under no circumstances in a proper case would you ever vote for [the death penalty] V ” (Italics added’.) We pointed out: “If we can ascertain that Mrs. Bronsal was aware that she could decide what was the proper case, then it is sufficient that the . . . words [“under no circumstances”] are present. In such event, their absolute negating force is unrestricted and they convey the idea of a vote against the death penalty automatically and regardless of the evidence in the case.” (People v. Varnum, supra, at p. 494.) We further explained that the trial court and counsel had pointed out on. numerous occasions' and without misleading statements to the contrary during the prior voir dire that ‘ ‘ what was a proper case was purely within the determination of each individual juror.” (Supra, p. 495.)

Yarnurn thus specifies that the words “in a proper ease” must be clarified to refer to that which is a “proper case” in the subjective judgment of the venireman. If the venireman understands that he must reach this conclusion and further agrees that ‘ ‘ under no circumstances ’ ’ would lie ever vote for the death penalty, we have the substantial equivalent of a commitment to an automatic vote against the penalty. In Yar-num we further emphasized that the venireman must realize - that the determination of “what was a proper case was purely within the determination of each individual juror”; (italics added) (supra, p. 495) the decision must be his personal and separate judgment.

Unlike Yarnurn, neither the trial court nor trial counsel during the voir dire preceding' the examination of Mrs. D’Arcy properly defined the term “proper case”; she was not told that a “proper case” was one in which in her absolute and individual discretion she could under some circumstances⁵ vote for the death penalty.

Although at one point in his introductory remarks before the interrogation of Mrs. D’Arcy, the trial court stated that the ‘ ‘ jury has a wide discretion in determining' whether or not it shall be life or whether it shall be death” (italics added), the word “wide” does not, of course, mean “absolute” and the designation of the jury collectively does not establish that the juror must reach an individual decision on the issue. Subsequently, the trial court referred to the “absolute discretion of the jury” on the issue but did not explain the discrepancy.

The record shows that the questions of court and counsel as to the “proper case” left the jurors in a state of confusion. This observation rests upon statements made by one juror who was excused for cause before Mrs. D ’Arcy and by others who followed her. The comments of subsequent jurors illustrate their confusion as to the term “proper case, ’ ’ and that same confusion could well have occurred with Mrs. D ’Arcy.

Mrs. Lemaire, who was examined before Mrs. D ’Arcy, replying to a question as 'to whether, if she “felt from the evidence that this was a proper case for the imposition of the death penalty,” she could not vote for that penalty, finally said, “Well, I feel that I could decide on the guilt or innocence of the party but I couldn’t join in imposing the death sentence on that party. I don’t know if that is what you are saying or not.” (Italics added.) Mr. Lagman likewise stated that he was not clear what the court was referring to in designating a proper case.⁶ Finally, Mrs. Eastman, in attempting to understand the questions that, had been put to her during, the “last few days,” emphatically declared that she was in a state of confusion.⁷

Under these circumstances “it'cannot reasonably be said, that veniremen who answered in the [negative the court’s] question couched in ‘proper case’ language thereby made it ‘unmistakably clear’ that their scruples against capital, punishment rendered them incapable of exercising the sole discretion contemplated by section 190 and 190.1 of the Penal Code because'they would automatically vote against the imposition of the death penalty regardless of the evidence.” (People v. Peale, 70 Cal.2d 497 [75 Cal.Rptr. 172, 450 P.2d 564].)

The determination of the juror’s state of mind in answering the question cannot be fixed with exquisite precision ; this court has decided that we must attempt to glean it from the totality of the record; this process is at best an approximate evaluation. In this delicate task we are bound by the constitutional mandate that the venireman’s answer must be unambiguous and that in judging whether his exclusion was erroneous we must be clear “beyond a reasonable doubt” that the error was harmless: clear “beyond a reasonable doubt” that the venireman’s answer could only mean exactly that which Witherspoon requires. (See People v. Williams, ante, p. 614 [79 Cal.Rptr. 65, 456 P.2d 633].)

Remembering that the United States Supreme Court has specifically ruled that the questioning of a venireman as to a “proper case” misleads him so that he cannot intelligently decide whether his objections to the death penalty would prevent him from passing upon whether a capital defendant should suffer death, we must find from the whole of the record that the term was clearly and precisely defined so that Mrs. D’Arcy knew the exact import of her answer. Although the instant issue is not clear from doubt and can support debate as to contradictory interpretations of the D’Arcy examination, this very lack of clarity, in view of the United States Supreme Court tests, prevents a positive validation of the procedure. Prior to the Witherspoon mandate the instant ambiguity was not only excusable but perhaps inevitable.

The judgment against Sears is modified by changing the sentence to life imprisonment and, as so modified, is affirmed. The judgment against Ketchel is reversed insofar as it relates to the penalty; in all other respects the judgment is affirmed.

Traynor, C. J., Peters, J., and Peek, J.,* concurred.

1 H. B. Sears, a eodefendant at the first trial, was also found guilty of first degree murder and first degree robbery. He received a sentence of life imprisonment for the murder, and we affirmed the judgment. (People v. Ketchel, supra, 59 Cal.2d 503.) His conviction is not before us on this appeal.

2 The reporter’s transcript shows that the trial court, in imposing sentence on Sears, recommended against parole. The judgment, as set forth in the clerk’s transcript, imposes sentence on Sears of life imprisonment without possibility of parole. The judgment errs in this respect, as Penal Code section 190 provides for the alternative punishment for first degree murder of life imprisonment or death but not of life imprisonment without .possibility of parole. We exercise our power under Penal Code section 1260 (see People v. Enriquez (1967) 65 Cal.2d 746, 749 [56 Cal.Rptr. 334, 423 P.2d 262]) to modify the judgment as to Sears to conform to the jury’s verdict pursuant to Penal Code section 190.

3 Since the instant trial took place prior to the decision in Witherspoon, the tx-ial court’s, rulings are entirely understandable under the previous cases.

4 It is no answer to this argument, of course, to state that the jury exercises complete discretion in choosing between life and death and thus that no cases are “proper’’ for the death penalty. "The critical question ... is not how the phrases employed in this area have been construed by courts and commentators. What matters is how they might be understood — or misunderstood — by prospective jurors.” (Witherspoon v. Illinois, supra, 391 U.S. 510, 516, fn. 9 [20 L.Ed.2d 776, 781].) The veniremen might well anticipate, and reasonably so, that standards would govern the jury’s decision as to penalty.

5 In the instant ease the trial court stated during its introductory remarks: . . [T]he court is required to ascertain if any prospective juror entertains such conscientious opinions [that] he or she would under no circumstances vote for the death penalty in a proper case.” When questioning other individual jurors prior to excusing Mrs. D’Arcy, the court invariably, and on no fewer than five occasions, used the “proper ease’’ question without using the words “under no circumstances.’’

6 “Q [by the court]: If you felt it was a proper case for the death penalty, you could vote for it in your opinion and following the court’s instructions 9

“A: I guess so, your Honor.

“Q: And, on the other hand, if you felt it was a proper case and it came to that stage for the imposition of life imprisonment, your verdict could he for that?

“A: Yes, your Honor.

“ Q: In other words, whatever the evidence showed, and of course with the instructions of the Court concerning what constitutes first-degree murder, you would follow the instructions?

"A: That is what I am not clear on, your Honor. What the Court might feel is proper I don’t Tcnow whether it goes along — . ’ ’

7 “Q: [by counsel for Ketchel] . . . [C]an you think of anything at all in your mind on the various questions that have been made here the last few days, anything at all you feel you should bring up now that prevents you from sitting as a 100 percent impartial juror?

“A: What I would like to ask really isn’t a matter of being able to aet fairly, but I am in a state of confusion as to what I have heard about instructions in terms of penalty.” (Italics added.)