dissenting. Defendant-appellant Williams has challenged the constitutionality of the trial judge’s specific instructions and the prosecutor’s comments that a death sentence recommendation by the jury *33would not be final or binding. These comments and instructions occurred during the sentencing phase of the trial. The court instructed the jury that its “recommendation” would not be final because the final decision as to the imposition of the death penalty rested with the court. As the majority correctly states, this was an accurate precis of Ohio law. This court previously disapproved of this form of instruction and argument but held that it was not reversible error in State v. Jenkins (1984), 15 Ohio St. 3d 164, at 202-203. The United States Supreme Court denied certiorari in that case, Jenkins v. Ohio (1985), 473 U.S___ 87 L. Ed. 2d 643, but subsequently unanimously remanded to this court a case raising the same issue, State v. Rogers (1985), 17 Ohio St. 3d 174, 176-177, vacated Rogers v. Ohio (1985), 474 U.S._, 88 L. Ed. 2d 452, for our reconsideration in light of the holding announced on June 11, 1985 in Caldwell v. Mississippi (1985), 472 U.S. _, 86 L. Ed. 2d 231.
I believe that the majority has misread both the thrust and content of Caldwell. In Caldwell, the court reviewed the prosecutor’s comments to the jury in his closing argument that “* * * your decision is not the final decision * * *” because “the decision you render is automatically reviewable by the Supreme Court [of Mississippi] * * *." Id. at 237. In a plurality opinion (Justice Marshall, joined by Justices Brennan, Blackmun and Stevens, Justice O’Connor concurring in part; Justice Powell not participating), the court overturned the death sentence imposed by the jury and concluded that “* * * it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant’s death [sentence] rests elsewhere. * * *” Id. at 239.
Justice Marshall determined that the prosecutor’s statements in Caldwell were inaccurate and “wholly irrelevant to the determination of the appropriate sentence.” Id. at 244. Justice O’Connor agreed that the prosecutor’s statements in Caldwell were both misleading and inaccurate. Id. at 247. Both justices distinguished California v. Ramos (1983), 463 U.S. 992, in which the court upheld the constitutionality of a California statute requiring capital sentencing juries to be instructed that the governor of the state could commute a life sentence without possibility of parole to a lesser sentence with parole eligibility. See Caldwell, supra, at 243-244 and 247-249. Justice Marshall observed that the propriety of the instruction in Ramos rested on its relevancy to a legitimate state penological interest. Id. at 243. Justice O’Connor noted that Ramos would not prevent the giving of nonmisleading and accurate instructions concerning postsentencing procedure. Id. at 247. Justice Rehnquist, writing for himself, Chief Justice Burger and Justice White in dissent, relied on Ramos in arguing that the prosecutor’s statements in Caldwell were constitutionally permissible because any misleading implications were cured by later statements. Id. at 254.
Unlike the law of many states, Ohio law provides for de novo review of death penalty sentences by the trial court, the court of appeals and this *34court. R.C. 2929.03(D)(3) and 2929.05(A). The instructions given in the case at bar were accurate, but I believe it is apparent, in light of Caldwell, that the United States Supreme Court would hold an accurate instruction such as we have here concerning postsentencing procedure to be improper and prejudicial. The Caldwell court appears to hold that an instruction that is misleading in the sense that it diminishes the jury’s sense of responsibility constitutes reversible error. It is most interesting that Justice Rehnquist commented even in his dissent in Caldwell that if the prosecutor had argued that “* * * the appellate court would correct any ‘mistake’ [that] the jury might make in choice of sentence * * * I might well agree that the process afforded did not comport with some constitutional norm related to procedural fairness. * * *” Caldwell, supra, at 252.
The plain truth of the matter is that that is precisely what happened in the case at bar. The prosecutor argued, and the trial judge informed the jury, that a death penalty sentence would be merely a recommendation. State-induced suggestions that the sentencing jury may shift its sense of responsibility for the imposition of the death penalty create a risk of substantial unreliability as well as potential bias in favor of death sentences. See id. at 240-242. For example, a jury might wish to “delegate” its responsibility for sentencing and minimize the importance of its role by recommending a death sentence because only a death sentence would receive de novo review by the trial and appellate courts. See id. at 242. Legal authorities have strongly condemned the sort of instructions and argument found in this case.7
In candor, I am not an admirer of Justice Marshall’s brand of Eighth Amendment jurisprudence. However, I must agree with him that instructions that allow the jury to shift its sense of responsibility for the imposition of the death penalty are constitutionally impermissible. In my experience as a trial judge, I found that jurors in hard cases look to the trial judge for guidance, legal instruction and comfort. I am sure that the type of instructions given here were most comforting. However, they were also most devastating to the defendant’s right that jurors “confronted with the truly awesome responsibility of decreeing death for a fellow human will act with due regard for the consequences of their decision * * McGautha v. California (1971), 402 U.S. 183, 208 [58 0.0.2d 243],
The consequence of a jury’s decision regarding imposition of the death *35sentence in Ohio has not been diminished by the statutory provision for de novo review. As of February 17, 1986, sixty-three death sentences had been imposed under the Ohio statute. Of that number, only one individual’s death sentence was modified to life imprisonment by a trial court, and only one death sentence was reversed by a court of appeals. Thus, although a jury’s decision to recommend imposition of the death penalty may theoretically be only a recommendation, in reality that decision is virtually final.
Although the jury instructions in the case at bar may have been accurate, their impact on the jury’s sense of the “awesome responsibility” with which it was charged compels reversal of appellant’s death sentence. I have had occasion to pass the death penalty upon an individual, and I am willing to uphold the law. However, I cannot in good conscience fail to dissent in this case.
I would uphold appellant’s conviction, but would reverse his death sentence and remand for resentencing.
C. Brown, J., concurs in the foregoing dissenting opinion.Caldwell, supra, at 242-243 and fn. 5; People v. Morse (1964), 60 Cal. 2d 631, 649-653, 36 Cal. Rptr. 201, 212-215, 388 P. 2d 33, 44-47; Pait v. State (Fla. 1959), 112 So. 2d 380, 383-384; Hawes v. State (1977), 240 Ga. 327, 335, 240 S.E. 2d 833, 839; Ice v. Commonwealth (Ky. 1984), 667 S.W. 2d 671, 676, certiorari denied (1984), 468 U.S___, 83 L. Ed. 2d 125; State v. Willie (La. 1982), 410 So. 2d 1019, 1034-1035; Poole v. State (1981), 290 Md. 114, 125, 428 A. 2d 434, 440; Wiley v. State (Miss. 1984), 449 So. 2d 756, 761-763; State v. Mount (1959), 30 N.J. 195, 152 A. 2d 343; People v. Johnson (1940), 284 N.Y. 182, 30 N.E. 2d 465; State v. Jones (1979), 296 N.C. 495, 497-500, 251 S.E. 2d 425, 427-428; State v. Gilbert (1979), 273 S.C. 690, 697-698, 258 S.E. 2d 890, 894.