¶1dissenting.
¶2In Ice v. Commonwealth and McQueen v. Commonwealth, both rendered February 16,1984,1 have protested against indifference to jury selection that included jurors obviously biased. I continue to urge this Court to realize the importance of the constitutional right to a neutral jury — the “impartial jury” guaranteed by the Sixth Amendment of the United States Constitution and Section XI of the Kentucky Constitution.
¶3Appellant has been found guilty of murder and given a life sentence. The uncon-tradicted evidence presented on the motion for new trial was that one member of the jury stated during jury deliberations that she should not be in the jury room because she was a very close friend of the victim’s mother.
¶4In my view, the trial court abused its discretion in failing to grant a new trial when thus confronted with the juror’s bias. Even the juror knew that “she should not be in the jury room.” The principle involved is too important to reason around it.
¶5The majority opinion has found two reasons why the constitutional mandate of an impartial jury has no application. It finds *840that the questions of the jury on voir dire were not sufficiently precise to require this unqualified juror to respond and it takes the view that we are required by RCr 10.04 (jurors are not permitted to impeach their own verdict) to close our eyes to the uncon-tradicted truth regarding this juror’s disqualification. On the contrary, the questions asked on voir dire were more than sufficient to generate a response from any fair-minded juror disclosing the relationship to the victim’s mother. Furthermore, if RCr 10.04 means what the majority says it does, it is constitutionally impermissible.
¶6Questions on voir dire regarding acquaintanceship with witnesses for the Commonwealth who were brothers and relatives of the deceased, followed by excusing jurors who were, followed by questions as to “any reason why a juror might be prejudiced against the defendant ‘because of the nature of the charges or otherwise,’ ” should have been sufficient to. trigger a response. Finally, the trial judge asked:
“And as my last question. Can you think of any matter that you should call to the court’s attention which may have some bearing on your qualifications as a juror or which may prevent you from rendering a fair and impartial verdict based solely upon the evidence in my instructions?”
¶7It is evident that the disqualified juror knew she should have responded to this question because she later told her fellow jurors that she should not be sitting on the jury. She did not have the “mental attitude of appropriate indifference” that the constitution calls for. Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). Here, as in Pennington v. Commonwealth, Ky., 316 S.W.2d 221, 223 (1958), “credulity would be stretched to the breaking point to say that the juror’s close relationship to (the victim’s mother) ... does not practically, or within limits of reality, bring the juror under the classification of being impliedly or presumably biased ...” Yet, her vote was necessary both for the conviction and the sentence.
¶8Further, we cannot ignore the potential inherent in this close relationship between a juror and the victim’s mother to taint the entire jury. Elementary principles of group dynamics make it very likely that such a relationship would generate hostility in the group towards the accused. The fact that other jurors came forward to disclose this disqualification convinces me that the jurors, if not the trial court which refused the new trial, were aware of the taint on the verdict.
¶9RCr 10.04, which the majority uses as a shield against evidence of juror bias in this case, is but a restatement of the longstanding rule against permitting jurors to impeach their verdict. This rule has always related to permitting jurors to testify about the reasons for their decision, not a collateral matter. Ruggles v. Commonwealth, Ky., 335 S.W.2d 344 (1960).
¶10Black’s Law Dictionary, 5th Ed., p. 678 defines “impeachment of verdict,” as an “(A)ttack on verdict because of alleged improprieties in the jury’s deliberations or conduct." “Conduct" means conduct during deliberations. Jones v. Commonwealth, Ky., 450 S.W.2d 812 (1970); Grace v. Commonwealth, Ky., 459 S.W.2d 143 (1970).
¶11Here the testimony of jurors was not offered to prove the verdict was improperly arrived at, but offered to show that one of the jurors was not qualified to serve and failed to disclose the disqualification.
¶12The majority opinion states:
“One of the (juror’s) affidavits stated that ‘(t)he boy should have had twelve people with open minds’; the other stated he was bothered by his conscience and wanted to clear his conscience and tell what happened. This is a curious attitude displayed by two jurors who also voted for a guilty verdict.”
¶13Since I share the view that even if the appellant is guilty he “should have had twelve people with open minds,” it also “bother(s) my conscience" that he did not. I find nothing curious in the attitude of these two jurors. On the contrary, we must cease to view the constitutional re*841quirement of a neutral jury as a procedural hurdle in the race to convict the guilty and open our eyes to its intrinsic value. It is the essential for justice under the law.
¶14I would reverse the conviction and remand the case for a new trial.