dissenting. Because I believe that Caldwell v. Mississippi (1985), 472 U.S. 320, requires that appellant’s sentence of death be reversed and remanded for resentencing, I dissent.
As explained in Justice Wright’s cogent dissenting opinion in State v. Williams (1986), 23 Ohio St. 3d 16, 32-35, “* * * [t]he 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. * * * 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.* * *” Id. at 34.
An instruction substantially similar to the one at bar formed the basis for reversing the denial of a writ of habeas corpus for a defendant who had received the death penalty in the recent case of Adams v. Wainwright (C.A. 11,1986), 804 F. 2d 1526. There, the trial judge instructed the initial panel of prospective jurors that their role in determining whether the defendant received the death penalty was only advisory, and that the ultimate responsibility rested with him as the trial judge. In holding that these comments impermissibly diminished the jury’s sense of responsibility in violation of Caldwell, the circuit court reiterated the concern of the Caldwell court that a bias in favor of the death penalty is thereby created such that a jury, unconvinced that the death penalty is appropriate, might nevertheless impose it as an expression of outrage at the defendant’s crime, secure in the comforting belief that any error will eventually be corrected.
A jury, understandably intimidated by the responsibility of deciding whether a human being shall live or die, will clutch at any comment from an authoritative source tending to relieve them of their terrible burden, and as a result, may discharge their grave responsibility with less than complete conscientiousness. Caldwell, supra, at 323-333. Such an effect cannot be tolerated.
Accordingly, I dissent to the majority’s reaffirmance of defendant’s sentence of death. I would vacate defendant’s death penalty and remand for resentencing.
Reilly and Wright, JJ., concur in the foregoing dissenting opinion.