dissenting in part and concurring in part. Once again, we are faced with a capital case in which untoward prosecutorial zeal at the sentencing stage was so pervasive that it *46deprived a defendant of fundamental due process of law and a fair trial pursuant to the Fifth and Fourteenth Amendments to the United States Constitution. Therefore, I must respectfully dissent.
I
While isolated instances of prosecutorial misconduct or overzealousness may be tolerated in many circumstances and indeed prove “harmless,” there comes a point where the cumulative effect of improper remarks and of untoward conduct by the state constitutes reversible error. Such is the case here. As was stated in State v. Liberatore (1982), 69 Ohio St. 2d 583, 589, 23 O.O. 3d 489, 493, 433 N.E. 2d 561, 566:
“Although the prosecution is entitled to a certain degree of latitude in summation, the prosecutorial blunders in this case are too extensive to be excused. Here we do not have simply a brief prosecutorial lapse, but a whole series of instances of misconduct. Indeed, the prosecution presented a textbook example of what a closing argument should not be.”
The very essence of our criminal justice system is that regardless of the heinousness of the crime charged, the apparent guilt of the offender, or the station in life which he occupies, every individual is entitled to a fair trial by an impartial jury. Irvin v. Dowd (1961), 366 U.S. 717, 722; Groppi v. Wisconsin (1971), 400 U.S. 505, 509. Similarly, “[t]he failure to accord an accused a fair hearing violates even the minimal standards of due process.” Id. Despite the fact that the defendant in the case at bar did in fact commit an abominable and highly publicized crime, this should in no way diminish — indeed, it should command — defendant’s right to a fair trial, whether in the guilt or sentencing stage.
II
The prejudicial statements made by the prosecution in this case fall into four main categories, each of which will be discussed separately below.
A
The prosecution urged the jury to recommend the death penalty to meet public demand and to make an example of the accused. The prosecution told the jury that it should “[mjake a message ring out. Criminals and potential criminals in this community, we won’t tolerate this. It is a deterrent.” Later, the prosecution asked the jury to send “* * * a message of justice, to the law-abiding people in this community. * * * [T]he only way they can be satisfied, to feel that justice has been done, is if capital punishment is measured out in a certain specific situation.”
We have held that “[a] closing argument that goes beyond the record may constitute prejudicial error, * * * particularly where the remarks call for the jury to convict to meet a public demand.” State v. Moritz (1980), 63 Ohio St. 2d 150, 157, 17 O.O. 3d 92, 96-97, 407 N.E. 2d 1268, 1273. Likewise, in State v. Cloud (1960), 112 Ohio App. 208, 217, 14 O.O. 2d 132, 136, 168 N.E. 2d 761, 767, Judge Kovachy aptly stated:
“Arguments of counsel in the trial of a lawsuit are permitted for the sole purpose of aiding the jury in analyzing the evidence and thus assisting it in determining the facts of the case. Arguments made to incite a jury to convict to meet a public demand are inimical to the basic rights of a defendant, since they prevent him from having a fair and impartial trial to which he is entitled under the law. * * *” See, also, State v. Agner (1972), 30 Ohio App. 2d 96, 59 O.O. 2d 208, 283 N.E. 2d 443.
*47B
The prosecution argued that the jury should recommend the death penalty out of sympathy for the victims' and their families, including those victims who were not killed and for crimes for which the death penalty cannot be imposed.4
In State v. White (1968), 15 Ohio St. 2d 146, 151, 44 O.O. 2d 132, 135, 239 N.E. 2d 65, 69-70, we held that “ ‘[i]n most cases evidence concerning the family left by the deceased is inadmissible.’ ** * * Such evidence is excluded because it is irrelevant and immaterial to the guilt or innocence of the accused and the penalty to be imposed. The principal reason for the prejudicial effect is that it serves to inflame the passion of the jury with evidence collateral to the principal issue at bar. * * *” This observation is particularly appropriate in the sentencing stage of a capital case.
In Booth v. Maryland (1987), 482 U.S ___, 96 L. Ed. 2d 440, 107A S. Ct. 2529, the United States Supreme Court held that the introduction of a victim-impact statement, which describes the effect of a crime on the victim and his family, at the sentencing phase of a capital murder trial is absolutely prohibited. I cannot agree with today’s majority that the prosecution’s argument in this case concerning the impact of the crime on the victims *48and their families “differs greatly” from the victim-impact statement considered by the jury in Booth. I reject the notion that the Booth decision’ should read as narrowly as the majority suggests. I believe that statements concerning the impact of a crime on victims or their families — regardless of the form in which they appear or who relates them — are prejudicial and totally irrelevant to the sentencing process. As the court stated in Booth, supra, at _, 96 L. Ed. 2d at 452, 107A S. Ct. at 2536:
“One can understand the grief and anger of the family caused by the brutal murders in this case, and there is no doubt that jurors generally are aware of these feelings. But the formal presentation of this information by the State can serve no other purpose than to inflame the jury and divert it from deciding the case on the relevant evidence concerning the crime and the defendant. As we have noted, any decision to impose the death sentence must ‘be, and appear to be, based on reason rather than caprice or emotion.’ * * * The admission of these emotionally-charged opinions as to what conclusions the jury should draw from the evidence clearly is inconsistent with the reasoned ■ decisionmaking we require in capital cases.”
C
The prosecution made other inflammatory and irrelevant comments that appear were designed to incite passion in the jurors and instill prejudice against the defendant. Notorious cases such as this one rigorously test our constitutional framework and often create an atmosphere conducive to abuse by the state. As Judge Jerome Frank stated in what has become a classic dissent:
“A keen observer has said that ‘next to perjury, prejudice is the main cause of miscarriages of justice.’ If government counsel in a criminal suit is allowed to inflame the jurors by irrelevantly arousing their deepest prejudices, the jury may become in his hands a lethal weapon directed against defendants who may be innocent. He should not be permitted to summon that thirteenth juror, prejudice. Law suits, do what we will, are hazardous: A missing witness, a lost document — these and numerous other fortuitous factors may result in a man’s losing his life, liberty or property unjustly. When the government puts a citizen to the hazards of a criminal jury trial, a government attorney should not be allowed to increase these hazards unfairly.” United States v. Antonelli Fireworks Co. (C.A. 2, 1946), 155 F. 2d 631, 659.
Among the inflammatory statements made by the prosecution in this case were the following:
“If there ever was a case for a verdict of death and for the penalty of death, it is this case. If there ever was a case that fits the specifications more closely to a course of criminal conduct, shooting, killing people, it is this case right here. You think about the past 10 years, the kind of crimes that have been committed in this community, this crime.
“This crime stands out in your mind as being a terrible act, something that just can’t be forgotten by the members of this community.
“It is like when you go to the doctor and you have got a pain. He takes a look at you and he tells you you have got cancer. There are two things we can do. We can radically proceed through an operation to remove that cancer. * * * Or we can give you some other form of treatment. * * * But there is no guarantee it is not going to kick back up again and spread.
*49“Are you going to tell that doctor to go ahead and give me that treatment and I will take my chances? Or do you want to say, ‘Doc, no, it is going to hurt me. It is not going to be an easy thing to do. Cut it out, because I want to be sure, Doc, Cut it out,’ I will say. And for every story they can tell you about a man in the tower, or a mistake in judgment some place, I can bring in five killers on parole, that kill again.”
These are just a few, and merely representative, of the improper and inflammatory comments made by the prosecution during closing argument in the sentencing stage of this case. These statements bear no relevance to the issue of guilt or innocence or whether mitigating factors were present, but accurately reflect the tenor of the prosecution’s entire argument — an argument designed to incite passion and prejudice against the defendant and evoke sympathy for the victims and survivors from the jury.
D
For the reasons I set forth in State v. Williams (1986), 23 Ohio St. 3d 16, 32-35, 23 OBR 13, 28-30, 490 N.E. 2d 906, 920-922 (Wright, J., dissenting), I believe that the prosecution’s closing remarks — as well as the jury instructions by the trial judge — that a death sentence recommendation by the jury would not be final or binding are prohibited in light of Caldwell v. Mississippi (1985), 472 U.S. 320.
In this case, the prosecution told the jury:
“When you recommend the sentence of death, you don’t sentence the defendant to die, but, rather, you recommend the sentence, and then Judge Nadel will then review the facts and determine what the sentence will be. And Judge Nadel can either sentence the defendant to death, or he can give the defendant a term of life in prison, either parole in 20 years or parole in 30 years. But by recommending death, you don’t sentence the defendant to die. You give the judge the opportunity to then determine what the sentence would be.”
In addition, the trial court told the jury:
“You must understand * * * that a jury recommendation to the Court that the death penalty be imposed is just that, a recommendation, and is not binding upon the Court. The final decision as to whether the death penalty shall be imposed upon the defendant rests upon this Court after the Court follows certain additional procedures required by the laws of this State.
“Therefore, even if you recommend the death penalty, the law requires the Court to decide whether or not the defendant, Michael F. Beuke, will actually be sentenced to death or to life imprisonment.”
I believe that such statements, which allow the jury to shift its sense of responsibility for imposition of the death penalty, are constitutionally impermissible, as discussed in State v. Williams, supra.
Ill
For the foregoing reasons, I do not think that the jury’s discretion to impose the death sentence in this case was “suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.” Gregg v. Georgia (1976), 428 U.S. 153, 189. Indeed, I believe the death sentence imposed in this case is based on considerations that are “constitutionally impermissible or totally irrelevant to the sentencing process.” Zant v. Stephens (1983), 462 U.S. 862, 885. Therefore, I must respectfully dissent from the penalty imposed, but would affirm appellant’s conviction and remand for resentencing.
The following argument was made by the prosecutor:
“If you want to start feeling bad ladies and gentlemen, if you want to start feeling sympathy, if you want to start talking about whether or not there is anything here that is mitigating about the defendant’s actions, if you want your answer whether or not there is any mitigation, think about Mr. Wahoff, first of all, and his little babies. If you want to start feeling sorry for the defendant when you look at those little pictures, that little boy who isn’t here anymore, think about Mr. Wahoff and his little girl. * He
“* * * His little girl, who[m] he will never dance with because he is paralyzed.
“Think about his little boy that he talked about. He will never run with that little boy. He will never play baseball.
“Why? Because of the 21-year old man sitting before you, not a Cub Scout, but a 21-year old man who ruined his life, and there he sits, paralyzed. And he will never be able to dance with that little girl when she goes to high school. He will never play ball with that little boy.
“If you want to feel bad, feel bad for him and then your answer is, there is nothing mitigating about what you heard this morning. “And think about the family of Robert Craig, and Mrs. Craig who doesn’t have a husband. Think about how he was laying [sic] out on the side of the road, and took time to forgive this man. And what did he get? He shot him right between the eyes and killed him.
“And now he has got a little boy. at home who doesn’t have a dad. And I brought pictures in of him, ladies and gentlemen. <<* He *
“ * * * I brought pictures in of him. I am sure you would think he was cute, too.
“Except he is real. He is still here. That little boy is not in the past. He is not part of that lost world. He is here. It is real for him. He doesn’t have a daddy.
“And Robert Craig’s little daughter. I could have brought pictures of her in too. It is not the past for her. It is real. She is here. And what about, ladies and gentlemen, Robert Craig’s newborn son, who was born just a few weeks ago? I will bet he is cute, too? <<* He He
“* * * He is cute, too. And just stop a second. He will never, he will never see his father.
“And Mrs. Craig will never have her husband. And then ask if there is anything mitigating about this case.”