concurring. I concur in the majority’s determination that the holding in Caldwell v. Mississippi (1985), 472 U.S. 320, does not require reversal of appellant’s death sentence. Our decision today is consistent with past pronouncements and is in harmony with the analysis of this issue found in my opinion in State v. Williams (1986), 23 Ohio St. 3d 16, 29-31 (Celebrezze, C.J., concurring).
Additionally, I write briefly in regard to some of the seemingly sweeping assertions in the majority opinion concerning the propriety of remarks by appellant’s counsel in closing argument of the penalty phase of this trial. Justice Sweeney correctly observes in his concurring opinion, infra, that this court need only have held that to the extent counsel misstated the applicable law, the remarks were improper. As the majority itself states, there should otherwise be no per se rule concerning comments to the jury by the prosecution or defense counsel in the penalty phase of a capital trial.6 Although the trial judge is usually in the best position to issue curative instructions, I agree that the prosecutor’s remarks in the case sub judice were proper and restrained corrective statements in response to defense counsel’s erroneous assertion that the jurors were going to kill appellant. However, as a caveat, it should be remembered that such respon*436sive comments are risky because improper prosecutorial argument will not always be excused under the doctrine of invited response.7 Caldwell, supra, at 336-337; United States v. Young (1985), 470 U.S. 1, 11-14.
Finally, appellant also asked this court to determine whether he was deprived of a fair trial by the state’s use of his post-Miranda silence as evidence of his sanity. The United States Supreme Court has recently addressed such a question in Wainwright v. Greenfield (1986), 474 U.S. _, 88 L. Ed. 2d 623. Thereafter, we granted a motion to expand the scope of review in this cause during rehearing to include consideration of appellant’s contention that the state’s conduct ran afoul of the Greenfield decision. In my view, it may have been wiser for the majority to have reached the merits. Hopefully appellant will move for rehearing before this court so that the merits of this question can be resolved. If left unresolved in this state’s courts, appellant’s recourse, inter alia, is to again petition the United States Supreme Court for a writ of certiorari.
Sweeney, J., concurring. I concur separately to emphasize that today’s decision should not be interpreted as limiting, as a matter of law, the scope of defense counsel’s argument. While it is necessary for the majority opinion to address the content of defense counsel’s argument, because it was the basis for permitting the prosecution to “make a brief, corrective statement,” I do not believe it is necessary to label defense counsel’s argument as “brash,” “inappropriate,” or “an attempt * * * to create an improper sense of guilt in the jury. * * *” The prosecution did not object to the argument in question, nor did the trial court, which is in the best position to determine whether an argument is prejudicial, attempt to restrain the defense counsel.
Further, I do not believe that the issue of capital punishment should never be a “subject for argument or comment” by defense counsel, simply because the issue previously has been “legislatively determined.” Arguments concerning the propriety or constitutionality of capital punishment cannot be limited by this court as a matter of law, and such arguments may be, at times, essential to the conduct of a vigorous defense.
Defense counsel’s argument herein was misleading in that it misstated the jury’s role in the penalty phase of the defendant’s trial. As such, it formed the basis for the prosecution’s “corrective statement,” which “contained a basic recitation of the law.” The prosecutor’s argument thus *437was proper and, in reaching this conclusion, we need not determine at this level that defense counsel’s previous argument was inappropriate or improper.
Celebrezze, C.J., concurs in the foregoing concurring opinion.The majority’s attempt to limit the scope of defense counsel’s comments in future proceedings is contradictory to its own pronouncement against such per se rules.
For example, in Caldwell, supra, the prosecutor’s erroneous and improper invited response resulted in vacation of the death sentence. The majority quoted with approval the opinion of the dissenting state supreme court justices below:
“ ‘Assuming without accepting the majority’s position that the defense counsel’s argument invited error, it did not invite this error. Asking the jury to show mercy does not invite comment on the system of appellate review. This is true whether the plea for mercy discusses Christian, Judean or Buddhist philosophies, quotes Shakespeare or refers to the heartache suffered by the accused’s mother.’ ” Caldwell, supra, at 337.