dissenting. At the risk of violating the Biblical proverb, that “* * * he that repeateth a matter separateth very friends,”5 I must respectfully dissent in this case.
I
For reasons that escape me, this court has been confronted with a veritable- flood of death penalty cases involving a pernicious pattern of prosecutorial misconduct. See, e.g., State v. Thompson (1987), 33 Ohio St. 3d 1, 514 N.E. 2d 407 (misconduct resulting in vacation of death sentence); State v. Williams (1988), 38 Ohio St. 3d 346, 359-360, 528 N.E. 2d 910, 924-925 (Sweeney, J., dissenting); State v. Esparza (1988), 39 Ohio St. 3d 8, 16, 529 N.E. 2d 192, 200 (H. Brown, J., dissenting; and State v. DePew (1988), 38 Ohio St. 3d 275, 293-299, 528 N.E. 2d 542, 560-566 (Wright, J., concurring in part and dissenting in part). One can only hope that these practices have abated as a result of the warnings contained in DePew, supra, at 288-289, 528 N.E. 2d at 556-557, and the deep concerns expressed by most, if not all, of the members of this court.
I am hopeful that repeating my concerns will not detract from the impact of previous treatment of this subject. Nevertheless, with a man’s life at stake, I feel compelled to again write in dissent to censure a pervasive practice among far too many prosecutors — conduct that I find in direct conflict with the foundation of our system of criminal jurisprudence.
I recognize that our system often places a prosecutor in the difficult position of being a vigorous advocate for guilt and punishment while at the same time that same prosecutor must be mindful of the accused’s right to a fair trial. The prosecutor’s function “* * * is not to tack as many skins of victims as possible to the wall. His function is * * * to give those accused of crime a fair trial.” Donnelly v. DeChristoforo (1974), 416 U.S. 637, 648-649 (Douglas, J., dissenting). See, also, EC 7-13 of the Code of Professional Responsibility-
In my view, the prosecutor in this case failed to maintain this crucial balance. The concern of improper prosecutorial influence upon a jury is particularly acute in the penalty phase of a capital case, especially where it tends to rebut a substantial amount of mitigation, as was the case here.6 “[I]t is most important that the sentencing *135phase of the [capital] trial not be influenced by passion, prejudice, or any other arbitrary factor. * * * With a man’s life at stake, a prosecutor should not play on the passions of the jury.” Hance v. Zant (C.A. 11, 1983), 696 F. 2d 940, 951, certiorari denied (1983), 463 U.S. 1210.
For the reasons noted below, I believe the facts here belie a finding beyond a reasonable doubt that the jury would have recommended the death penalty absent the improper arguments by the prosecution. As a result, I believe appellant was denied fundamental due process and a fair trial pursuant to the Fifth and Fourteenth Amendments to the United States Constitution.
II
Improper conduct by the prosecutor during the penalty phase of this case falls into three main categories. Examples of this conduct are discussed below. The cumulative effect of this misconduct dictates a remand to the trial court for resentencing. “Any egregious error in the penalty phase of a death penalty proceeding, including prosecutorial misconduct, will be cause to vacate the sentence of death with a subsequent remand to the trial court for a new sentencing procedure pursuant to R.C. 2929.06.” Thompson, supra, at syllabus. ■
A
In his argument at the penalty phase, the prosecutor showed the jury photographs that were previously admitted during the guilt phase and improperly commented upon them. Before the prosecutor readmitted the photographs at this stage, he told the jury that:
“Whatever Mr. Bedford experienced, whatever he was feeling is not grounds to take two people’s lives; and I’m going to show you the photographs in the case. You’ve already seen them, but I’ll remind you of them because this is what the whole case is about; this is the reason we are here, okay? This is [sic] the aggravating circumstances, this is the course of conduct which brought us all here together * * (Emphasis added.)
In State v. Thompson, supra, this court vacated a death sentence and remanded for resentencing for prosecutorial misconduct less severe than that found in this case. In Thompson, during the guilt phase of a capital case, the prosecutor presented gruesome photographic slides to illustrate expert testimony. Later, during argument in the penalty stage, the prosecutor *136referred to these slides but did not show them again.
This court stated that introduction of the slides during the guilt phase was harmless error, but held that the subsequent reference to them during the penalty phase was prejudicial. “Although the prosecutor did not actually show the slides again, his entreaty that the jury should remember the slides could have had no other effect than to cause the jurors to re-experience the horror and outrage they must have felt upon viewing the slides earlier in the trial. * * *” Thompson, supra, at 15, 514 N.E. 2d at 420.
In the instant case, not only did the prosecutor refer to the gruesome photographs that were presented during the guilt phase, but he actually resubmitted the photos to the jury during the penalty phase. These photographs, including color close-ups, show Smith lying with his head in a pool of blood on the porch. In addition, several photographs show Toepfert’s body lying inside the apartment with a portion of her bowels protruding. It does not take much imagination to appreciate the revulsion the jury must have felt when these photographs were again presented to it. Therefore, if the tactics used by the prosecutor in Thompson were prejudicial, then surely the tactics used by the prosecutor in this case warrant vacation of the death sentence and a remand for resentencing pursuant to R.C. 2929.06.
Finally and most importantly, in State v. Davis (1988), 38 Ohio St. 3d 361, 367-373, 528 N.E. 2d 925, 931-936, Justice Locher correctly pointed out that only those aggravating circumstances specifically enumerated in R.C. 2929.04(A) may be considered in imposing the death penalty. In Davis, we remanded the case to the trial court because the three-judge panel weighed aggravating circumstances that were outside the statute. “ ‘This weighing process is designed to guide the sentencing authority’s discretion by focusing on the “circumstances of the capital offense and the individual offender * * *,” thus reducing the arbitrary and capricious imposition of death sentences. * * * Like all penalty provisions, R.C. 2929.04(B) must “* * * be strictly construed against the state, and liberally construed in favor of the accused.” R.C. 2901.04(A).’ ” Id. at 369, 528 N.E. 2d at 933, quoting State v. Penix (1987), 32 Ohio St. 3d 369, 371, 513 N.E. 2d 744, 746-747. See, also, Esparza, supra, at 16, 529 N.E. 2d at 200 (Locher, J., concurring).
The presentation of the photographs during the penalty phase and the prosecutor’s related statement that “this is [sic] the aggravating circumstances, this is the course of conduct which brought us all here together” are precisely the types of nonstatutory circumstances that Dams proscribes. -Therefore, it is obvious that this jury could not help but weigh the “nature and circumstances” of the offense, which is clearly improper. See Esparza, supra, at 16, 529 N.E. 2d at 200 (Locher, J., concurring).
The prosecutorial misconduct in introducing these nonstatutory aggravating circumstances to the jury during its weighing process was prejudicial to the defendant in that it allowed the jury to arbitrarily and capriciously impose the death penalty.
B
The prosecutor misled the jury when he improperly argued that the statutory minimum sentences under a life verdict failed to assure that appellant would not be released before that sentence was served. The prosecutor told the jury:
“The law says that the parole eligi*137bility is 30 years and the parole eligibility is 20 years, and that’s the way it is today; but you don’t know how it’s going to be a year from now, two years from now, three years from now.
The prosecutor was speculating that the present law may somehow be amended so that appellant could receive parole to shorten his sentence. As I recently stated in DePew, supra, at 297, 528 N.E. 2d at 564 (Wright, J., concurring in part and dissenting in part), such speculation is improper since early parole, as suggested by the prosecutor, is impossible under present law. In addition, the possibility of parole is outside the province of the jury. See California v. Ramos (1983), 463 U.S. 992, 1026, fn. 13 (Marshall, J., dissenting).
In Farris v. State (Tenn. 1976), 535 S.W. 2d 608, 614, the Tennessee Supreme Court stated that jurors should not be informed about the possibility of parole because “* * * jurors tend to attempt to compensate for future clemency by imposing harsher sentences.” Similarly, in the present case, appellant was prejudiced beyond doubt because the jurors may have imposed a harsher sentence because of the prosecutor’s comments. See, also, People v. Brisbon (1985), 106 Ill. 2d 342, 478 N.E. 2d 402 (reference to possibility of early parole); and People v. Davenport (1985), 41 Cal. 3d 247, 221 Cal. Rptr. 794, 710 P. 2d 861 (comment on possible commutation).
C
Quoting from the United States Supreme Court decision of Gregg v. Georgia (1976), 428 U.S. 153, 183, the prosecutor in this case told the jury during the penalty phase that “* * * capital punishment is an expression of society’s moral outrage at particularly offensive conduct. This function may be unappealing to many, but it is essential in an ordered society that asks its citizens to rely on legal processes rather than self-help to vindicate their wrongs.” The prosecutor then quoted from the concurring opinion of Justice Stewart in Furman v. Georgia (1972), 408 U.S. 238, 308, which states:
“* * * The instinct for retribution is part of the nature of man, and channeling that instinct in the administration of criminal justice serves an important purpose in promoting the stability of a society governed by law. When people begin to believe that organized society is unwilling or unable to impose upon criminal offenders the punishment they ‘deserve,’ then there are sown the seeds of anarchy — of self-help, vigilante justice, and lynch law.”
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.
The above quotations, particularly the passage from the Gregg opinion, are being used more and more frequently by prosecutors in the penalty phase of capital cases, both in this state and elsewhere. This is a practice that I find improper.
In Wilson v. Kemp (C.A. 11,1985), 777 F. 2d 621, the United States Court of Appeals analyzed the use of such a quotation during the penalty phase of a capital trial and found that such use, combined with other improper comments, constituted reversible error. In addressing the prosecution’s use of the very same Gregg excerpt quoted in this case, the court stated:
“As used by the prosecutor, the Gregg passage conveys the impression that ‘this function’ — i.e., capital *138punishment — is ‘essential in an ordered society.’ By contrast, the Supreme Court’s intended meaning was quite different, as shown by a reading of the entire Gregg passage in context. The intended meaning was that recognition of the function of retribution is ‘essential in an ordered society.f’] * * * [0]ne need only read the relevant portion of the prosecutor’s closing argument to appreciate its message: the United States Supreme Court has stated that in its view, capital punishment is essential in an ordered society. The fact that many states and countries do not have capital punishment and yet enjoy ordered societies belies this conclusion, which in any event has never been expressed by the Supreme Court. * * * [A] review of the entire context of the Gregg opinion shows that this was not the Supreme Court’s intended meaning. Therefore, we conclude that the prosecutor’s misleading use of the passage was improper argument * * Id. at 625.
In Ohio, the sentencing jury’s responsibilities are limited. At the penalty phase, the jury must first determine whether or not any mitigating factors have been established. Then the jury must weigh against the existing mitigating factors the aggravating circumstance^) of which it convicted the defendant at the guilt phase of the trial. If the aggravating circumstance^) outweigh the mitigating factors beyond a reasonable doubt, then the death penalty is required. Otherwise, the jury recommends a sentence of life, with either twenty or thirty years of actual incarceration prior to parole consideration. R.C. 2929.03(D).
Thus, any opinion of the United States Supreme Court as to the desirability of the death penalty is completely irrelevant to the decision to be made by the jury. The only possible purpose for injection of the Gregg quotation is a thinly veiled attempt to advise the jury that the Supreme Court condones the death penalty as the proper response to a public demand for retribution. This, in my view, is constitutionally impermissible.
Therefore, for the foregoing reasons, I must dissent with respect to the sentence imposed, but would uphold the jury’s finding of guilt.
Sweeney and H. Brown, JJ., concur in the foregoing dissenting opinion.Proverbs 17:9.
The evidence presented during the sentencing hearing established Bedford’s low intelligence quotient (seventy), his limited ability to read and write, his poor academic record, and his lack of a prior felony record. Expert testimony substantiated that Bedford was severely de*135pressed, very dependent on others, and that his emotional state was consistent with suicide, an act he apparently contemplated the evening before the murders. Indeed, Dr. Nancy Schmidtgoessling, a clinical psychologist, explained that a love interest’s rejection would be a crisis point for Bedford, although in her opinion his illness was treatable.
In an unsworn statement, Bedford recounted his tragic life story which included the murder of his father and the early death of his mother. Bedford married at fifteen and the marriage produced six children, all of whom eventually went to live with their mother when she moved out to live with another man. In addition, Bedford had consistently abused alcohol.
That the jury considered this evidence of great significance is supported by the questions it posed to the trial court. After almost twelve hours of deliberation, the jury inquired as to what would happen if it could not reach a unanimous verdict and how long it had to keep trying before a deadlock could be declared. These questions suggest that, without more, the jury could not have found these mitigating factors were outweighed by the aggravating circumstance beyond a reasonable doubt.