concurring in part and dissenting in part. Time and time again this court has commented on the impropriety of a prosecutor’s argument throughout the course of a capital case. Time and time again we have given prosecutors the benefit of the doubt, declaring their conduct to be nonprejudicial in view of overwhelming evidence of guilt.
However, despite our best efforts to clarify the limits of acceptable advocacy, and our stern warnings to avoid such inappropriate conduct in the future, some prosecutors continue to unabashedly cross the line of vigorous but proper advocacy. In doing so, they taint the fairness of our criminal justice system.
Such conduct has been recognized by our state and federal judges throughout history as a challenge to the very foundation of our system of criminal justice. See, e.g., State v. Keenan (1993), 66 Ohio St.3d 402, 613 N.E.2d 203 (convictions and death penalty reversed); State v. Thompson (1987), 33 Ohio St.3d 1, 514 N.E.2d 407 (death sentence reversed); State v. Smith (1984), 14 Ohio St.3d 13, 14 OBR 317, 470 N.E.2d 883 (conviction reversed and cause remanded for new trial); State v. Liberatore (1982), 69 Ohio St.2d 583, 23 O.O.3d 489, 433 N.E.2d 561 (conviction reversed and cause remanded for new trial); United States v. *351Kojayan (C.A.9, 1993), 8 F.3d 1315, 1323; Walker v. Engle (C.A.6, 1983), 703 F.2d 959; Darden v. Wainwright (1986), 477 U.S. 168, 205-206, 106 S.Ct. 2464, 2484, 91 L.Ed.2d 144, 172-173 (Blackmun, J., dissenting, joined by Brennan, Marshall, and Stevens, JJ.); Donnelly v. DeChristoforo (1974), 416 U.S. 637, 648-649, 94 S.Ct. 1868, 1874, 40 L.Ed.2d 431, 439-440 (Douglas, J., dissenting); United States v. Antonelli Fireworks Co. (C.A.2, 1946), 155 F.2d 631, 661 (Frank, J., dissenting).
The United States Supreme Court has explicitly recognized that prosecutors serve a special role in our justice system requiring them to adhere to the highest standards and to avoid improper arguments, insinuations, and assertions calculated to mislead the jury. The role of the prosecutor is to ensure “not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor— indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.” Berger v. United States (1935), 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314, 1321.
Over ten years ago, we, ourselves, noted our “mounting alarm” over the increasing incidence of misconduct by prosecutors. State v. DePew (1988), 38 Ohio St.3d 275, 288, 528 N.E.2d 542, 556. Commenting on the misconduct of the assistant prosecutors, we said: “We have previously voiced our disapproval of the various forms of misconduct by counsel in such cases. * * * Apparently, our efforts in this regard have been something less than successful, and the avenues for prevention and correction by trial courts, appellate courts and this court are relatively few. Time and again we see counsel misconduct which in many cases would appear to be grounds for reversal and the vacating of convictions and/or sentences. * * *
d íjí íjí 5¡5
“* * * Attorneys, trial courts, courts of appeals and this court should remain ever vigilant regarding the duties of counsel as exemplified in the [Code of Professional Responsibility].” Id. at 288, 528 N.E.2d at 556-557.
Yet prosecutorial misconduct has not abated in the more than ten years since DePew. Nearly all the members of this court over the last several years have expressed their concern regarding the proclivity of some prosecutors to ignore our warnings.1
*352Clearly, our protestations have failed to change the advocacy of some prosecutors. It is as if they intentionally engage in improper conduct, safe in the belief that this court will continue to protest with no consequences. In the interest of the integrity of the criminal justice system in this state, we must demonstrate that our protestations are more than utterings of frustration.
The majority opinion joins a long list of well-meaning and apparently ineffective admonishments to the prosecutors of this state. The majority clearly expresses its disapproval of the conduct of the prosecutors in this case,2 but provides no consequence or disincentive for the continuation of such conduct. Instead, the majority offers the following:
“For the reasons that follow, although we find no reversible error, we express our deep concern over some of the remarks and misstatements made by the prosecutors involved in this case. While we realize the importance of an attorney zealously advocating his or her position, we cannot emphasize enough that prosecutors of this state must take their roles as officers of the court seriously. As such, prosecutors must be diligent in their efforts to stay within the boundaries of acceptable argument and must refrain from the desire to make outlandish remarks, misstate evidence, or confuse legal concepts. Nevertheless, because we find that none of the errors complained of rises to the level of plain error, we do not reverse this case based upon prosecutorial misconduct.” “Although we are greatly disturbed by Prosecutor Russell’s and Prem’s lack of restraint and their willingness to utter such inflammatory remarks, we cannot say that these *353comments constitute reversible error. * * * If this kind of activity continues, it is just a matter of time before it affects the outcome of a trial.”
As Judge Jerome Frank stated in his often-cited dissent in United States v. Antonelli Fireivorks Co., Inc. (C.A.2, 1946), 155 F.2d at 661, the repeated use of vigorous language denouncing prosecutors for improper conduct, without more, constitutes an “attitude of helpless piety * * *. It means actual condonation of counsel’s alleged offense, coupled with verbal disapprobation. If we continue to do nothing practical to prevent such conduct, we should cease to disapprove it. For otherwise * * * [t]he deprecatory words we use in our opinions on such occasions are purely ceremonial. * * * The practice * * * breeds a deplorably cynical attitude towards the judiciary.”
As demonstrated by the pattern of misconduct we have been reviewing, Judge Frank’s observation that prosecutors are willing to suffer such verbal chastisement in order to ensure victory, despite the cost to our justice system, has been proven true.
Often, in these cases, we have based our final determination on the grounds that the verdict and the penalty are justified under the ever-expanding realm of harmless error. While it is true that “the touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor,” Smith v. Phillips (1982), 455 U.S. 209, 219, 102 S.Ct. 940, 947, 71 L.Ed.2d 78, 87, it is also true that many of our opinions have focused on the sufficiency of the admissible evidence and our ability to perform an independent review of the penalty rather than focusing on the fairness of the original trial itself.
Refusing to address the fundamental unfairness of a trial riddled with prosecutorial misconduct because a majority of this court deems the evidence of guilt to be overwhelming creates the perception that we protect the right to a fair trial only when we believe that the defendant is not guilty. However, our constitutional duty is to ensure that all defendants, regardless of guilt or innocence, receive a fair trial, and to ensure that a person accused is presumed innocent until the state, within the bounds of due process, satisfies its burden of proving beyond a reasonable doubt all of the elements of the charged offense, and the appropriateness of the imposed sentence. See, also, R.C. 2901.05(A). In order to accomplish this constitutional goal, the General Assembly has limited the information available to the jury at both the guilt and penalty phases of a capital trial to ensure that the jury’s deliberations are not tainted by irrelevant, inflammatory, or otherwise improper factors.
These protections become even more important when the same jury that determines a defendant’s guilt is also responsible for recommending whether that defendant will live or die once convicted. Due process requires that the *354sentencing phase of a capital trial not be unduly influenced by passion, prejudice, or any other arbitrary factor. With a human life at stake, a prosecutor should not play on the passions of the jury. Keenan, 66 Ohio St.3d at 407, 613 N.E.2d at 207. Thus, even though I agree that the prosecutorial misconduct in this case may not have affected the overall fairness of the guilt phase, it is impossible to say that impropriety in both the guilt and penalty phases did not in any way affect the jury’s deliberations regarding the penalty to be imposed.
The United States Supreme Court has reiterated that allowing affirmance of a conviction simply because the otherwise admissible evidence is sufficient to support the verdict is not the proper harmless error standard. Such a standard would be “a much more lenient rule” that would make the offensive evidence or conduct “virtually risk-free for the State.” Arizona v. Fulminante (1991), 499 U.S. 279, 309, 111 S.Ct. 1246, 1264, 113 L.Ed.2d 302, 331. In order to find an error harmless in the guilt phase, it must be clear beyond a reasonable doubt that, absent the prosecutor’s comments, the jury would have found the defendant guilty. State v. Smith, 14 Ohio St.3d at 15, 14 OBR at 319, 470 N.E.2d at 886. However, if the error amounts to a violation of due process, it vitiates the judgment even where there is sufficient other evidence to support a judgment of conviction. Arizona v. Fulminante, supra.
The harmless error standard is even more stringent when applied to errors committed at the penalty phase of a capital trial. “The question * * * is not whether the legally admitted evidence was sufficient to support the death sentence, which we assume it was, but rather, whether the State has proved ‘beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’ ” Satterwhite v. Texas (1988), 486 U.S. 249, 258-259, 108 S.Ct. 1792, 1798, 100 L.Ed.2d 284, 295, quoting Chapman v. California (1967), 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705, 710. This standard is recognized by the Sixth Circuit as a “stringent harmless error standard.” Kordenbrock v. Scroggy (C.A.6, 1990), 919 F.2d 1091, 1097. Under this standard, the burden is on the state, the beneficiary of the error, to prove beyond a reasonable doubt that the jury’s sentencing recommendation was not based even in part upon the error.
The majority opinion, and many of our past decisions, tends to focus on the potential prejudicial effect of each separate error, ignoring or summarily dismissing errors to which there was no objection, as well as the potential for cumulative error. However, Ohio jurisprudence and federal constitutional law have long recognized that errors, whether or not they are independently prejudicial, must be considered for their cumulative effect on the defendant’s due process rights. This includes even those errors to which defense counsel did not object. See, e.g., State v. Keenan, 66 Ohio St.3d at 410, 613 N.E.2d at 209-210; Walker v. Engle, 703 F.2d at 963, citing United States v. Jones (C.A.D.C.1973), 482 F.2d 747; *355Newsom, v. United States (C.A.5, 1962), 311 F.2d 74; United States v. Maroney (C.A.3, 1967), 373 F.2d 908; and State v. Liberatore, 69 Ohio St.2d at 589-590, 23 O.O.3d at 493, 433 N.E.2d at 566-567.
In Berger v. United States 295 U.S. at 85, 55 S.Ct. at 632, 79 L.Ed. at 1320, the United States Supreme Court noted the -importance of viewing prosecutorial misconduct in the context of the entire proceeding: “It is impossible, however, without reading the testimony at some length, and thereby obtaining a knowledge of the setting in which the objectionable matter occurred, to appreciate fully the extent of the misconduct.” The court further noted that “we have not here a case where the misconduct of the prosecuting attorney was slight or confined to a single instance, but one where such misconduct was pronounced and persistent, with a probable cumulative effect upon the jury which cannot be disregarded as inconsequential.” Id. at 89, 55 S.Ct. at 633, 79 L.Ed. at 1321. The court also recognized that the mere sustaining of objections may not be sufficient to cure such pervasive misconduct. Id. at 85, 55 S.Ct. at 632-633, 79 L.Ed. at 1320.
Considering the stringent standard to be applied in determining harmless error, and the cumulative effect of the errors complained of, I agree with the majority that, considering the record as a whole, the errors in the guilt phase of the trial did not violate the defendant’s due process rights and are otherwise not so prejudicial as to require a reversal of his conviction. I reemphasize, however, the majority’s caution regarding the prosecutor’s improper comments, some of which could be construed as comment on the appellant’s failure to testify. Prosecutors as well as defense counsel should be very careful in their presentation of argument and their word choice. A poorly worded or ill-prepared statement can, even inadvertently, encroach upon the fairness of the trial.
PENALTY PHASE
In regard to the penalty phase of the trial, I must respectfully dissent from the decision of the majority. I believe that the type and number of prejudicial errors that occurred throughout the trial cumulatively denied the defendant his due process rights to a fair and impartial trial on the penalty to be assigned.
The defendant’s first proposition of law argues that the prosecutors improperly argued nonstatutory aggravating factors. The majority acknowledges that the prosecutor improperly referred to the terror appellant allegedly inflicted on Derrick Frazier as “an aggravating circumstance,” misstated the law, improperly presented the nature and circumstances of the offense as an “aggravating circumstance” to be weighed against the mitigating evidence, and implied that mitigation must outweigh aggravation. This is the most fundamental and clearly defined type of misconduct in which a prosecutor may engage in the penalty phase of a capital trial. It goes to the very core of the entire sentencing process. *356Injecting improper considerations into the weighing process impermissibly tips the scales in favor of the state, and the type of factors involved here clearly involves an attempt to inflame the jury and improperly appeal to their emotions.
We have provided clear and unambiguous direction specifically disallowing this type of argument. “Again and again and again, we hold that in the penalty phase of a capital trial, the ‘aggravating circumstances’ against which the mitigating evidence is to be weighed are limited to the [statutory specifications] that have been alleged in the indictment and proved beyond a reasonable doubt.” State v. Wogenstahl (1996), 75 Ohio St.3d 344, 356, 662 N.E.2d 311, 322. We provided syllabus law expressly on point to eliminate any confusion: “It is improper for prosecutors in the penalty phase of a capital trial to make any comment before a jury that the nature and circumstances of the offense are ‘aggravating circumstances.’ ” Id. at paragraph two of the syllabus.
It is only fair to presume, considering the clarity of the law on this issue, the objection by defense counsel, and the repeated nature of the misconduct, that the prosecutors’ comments were not mere misstatements or inadvertent assertions made in the heat of the moment. Yet, the majority, despite the blatant violation of syllabus law and statutory law, despite the clear attempt to appeal repeatedly to the emotions of the jury, and despite two defense objections that were overruled by the trial court, applies a plain error standard and finds the conduct nonprejudicial.
Added to the prejudicial effect of these improper arguments is the fact that the jury in this ease was also improperly presented with duplicative statutory aggravating circumstances, because the trial court did not merge the kidnapping and the aggravated robbery circumstances until after the jury had made its recommendation. Thus, the state was improperly favored in the weighing process, contrary to the statutory mandates and despite the fact that the state bears the burden of proof. R.C. 2929.03(D)(1). It is also significant that the jury deliberated for nine hours and told the court on the record that its decision was difficult. Therefore, we should not presume that these improper considerations had no effect on the jury’s recommendation.
DENIGRATION OF OPPOSING COUNSEL
We are not unmindful of the reality that effective advocates will at times offer descriptions of opposing counsel that would not be heard outside the courtroom. Indeed, we have repeatedly permitted some advocates for the state to bend our own rules in death penalty cases. The conduct of the attorneys for the state in this case has bent the rules beyond the breaking point.
Comments which impute insincerity to defense counsel are improper. See State v. Keenan, 66 Ohio St.3d at 405, 613 N.E.2d at 206-207; State v. Smith, 14 *357Ohio St.3d at 14, 14 OBR at 318-319, 470 N.E.2d at 885; EC 7-37. While cross-examining Dr. Smalldon, the prosecutor referred to defense counsel as the defendant’s “mouth piece.” Because defense counsel objected to this statement and the court sustained the objection, instructing the jury to disregard it, the majority deems it nonprejudicial. I would agree if this were counsel’s only misstatement, but unfortunately the transcript reveals other instances in which the prosecutor intentionally denigrated defense counsel. During cross-examination of Dr. Smalldon and in closing arguments, the prosecutor repeatedly implied that defense counsel was improperly keeping information from the jury that was relevant to their decision despite a court ruling that this information was not available to the state or the jury. Various objections were entered during the cross-examination, some of which were sustained, and some of which were overruled.
During closing arguments of the guilt phase, the prosecutor compared defense counsel to a magician and insinuated that he was attempting to trick the jury and was not telling the truth: “And what does the magician say how it happened? Does he tell you the truth? He says, ‘It’s magic.’
“Some people say it would be magic. But is that the truth? No. The truth is it’s a slight [sic] of hand technique, a trick.
$ %
“The magic thing sounds good, but that’s not the truth.”
While these comments may not in and of themselves justify reversal of the death sentence in this case, they do demonstrate clear error and add to the overall unfairness of the proceedings.
Error during the guilt phase that was deemed harmless as to the verdict of guilt may taint the jury in the penalty phase and is therefore relevant to this discussion. We acknowledged in State v. Thompson that “we would be naive not to recognize that'those matters which occur in the guilt phase carry over and become part of the entire proceeding as the penalty phase is entered. The type and magnitude of any error then becomes at issue.” Id., 33 Ohio St.3d at 15, 514 N.E.2d at 421. When the “mouth piece” comment is viewed in conjunction with these other attempts to denigrate the defense counsel, I do not find the comments to be so easily dismissed.
APPEALING TO THE PECUNIARY INTERESTS OF THE JURORS '
During the cross-examination of Dr. Smalldon, and the closing arguments of the penalty phase, the prosecutor elicited testimony and argued to the jury that the defendant’s witness was being paid for his testimony with taxpayer money. *358A defense objection was overruled. In addition, the prosecutor implied that the charges being born by the taxpayer were excessive.
The majority, once again, recognizes the impropriety of such comments but, though it does not explicitly find the argument to be nonprejudicial, it dismisses the comments because they do not rise to the level of prejudice found in State v. Keenan, 66 Ohio St.3d 402, 613 N.E.2d 203. If improper actions are prejudicial, reversal is in order. Keenan was never set forth as the minimum level of prejudice required for a death penalty reversal. We have clear syllabus law that directly supports the contention that statements in closing argument appealing directly to the pecuniary interests of the jury are highly improper and can constitute prejudicial error if not adequately addressed by the trial court. See State v. Muskus (1952), 158 Ohio St. 276, 49 O.O. 122, 109 N.E.2d 15, at paragraph two of the syllabus. In this case the trial court overruled the objection of defense counsel and made no attempt to correct or limit this line of argument.
CROSS-EXAMINATION OF EXPERT WITNESS
Several additional acts of prosecutorial misconduct resulted from the prosecutors’ unwillingness to accept the trial court’s ruling limiting the prosecution’s access to Smalldon’s interview notes and refusing to require Smalldon to reduce his opinion to a written report. The prosecution, despite this ruling and despite the ample opportunity to argue its point to the judge, made several comments about the notes and the absence of a written report in the presence of the jury. The prosecutor repeatedly asked Smalldon whether he provided these notes or a report to the state. The defense objected to these references and the trial court sometimes sustained and sometimes overruled the objections.
The prosecutor told the jury that relevant facts were not in evidence and insinuated that the state was prejudiced by not being able to review that information. The prosecutor also insinuated that Dr. Smalldon was inappropriately withholding information from the state and that both he and defense counsel were attempting to hide relevant information from the jury. The prosecutor even told Smalldon in the presence of the jury that he needed to make a report to the jury so that the jurors could know where the inconsistencies were in the defendant’s record and in Smalldon’s evaluation. This statement of course also implies that the prosecutor was aware of inconsistencies and that they were relevant to the testimony of the doctor. An objection was sustained but no curative instruction was given.
The majority recognizes this as improper conduct and recognizes that it had the effect of falsely impugning the reputation of Dr. Smalldon, who was potential*359ly defendant’s most important mitigation witness. Yet, again, the majority dismisses this intentional, improper course of conduct.
I cannot agree with the majority’s conclusion. This court and the United States Supreme Court have recognized the danger of this type of misconduct, where the prosecutor attempts to denigrate defense counsel and defense witnesses. “[Ijmproper suggestions, insinuations, and, especially, assertions of personal knowledge [by the prosecution] are apt to carry much weight against the accused when they should properly carry none.” Berger v. United States, 295 U.S. at 88, 55 S.Ct. at 633, 79 L.Ed. at 1321.
The state has offered no evidence or argument sufficient to show beyond a reasonable doubt that these instances of misconduct did not contribute to the jury’s recommendation. To the contrary, the record indicates that the jury was well aware of and focused on the dispute regarding Dr. Smalldon’s notes, the absence of a written report, and other questions regarding Smalldon’s credentials that elicited sustained objections. Though they should never have been made aware of the existence of the notes, the absence of those notes was considered. Though some objections to improper questions regarding Smalldon’s credentials were sustained, it is clear from the transcript that the jurors did not eliminate from their minds the not so subtle inferences created by the prosecutors.
The transcript includes a question-and-answer session conducted with the jury members following their recommendation and prior to the actual sentencing. That session provides unusually direct evidence suggesting that this instance of prosecutorial misconduct did affect the jury’s deliberation:
“Juror Guilfoyle: I want you to tell me what was off the record about the little doctor. Why he couldn’t go into that * * * . Why he didn’t take his board test in ’96.
“The Court: One of the things I’m sure you picked up on Dr. Smalldon is he does not write a written report.
“Mr. Rosenwald [Defense Counsel]: Which he doesn’t have to.
“Mrs. Russell [Assistant Prosecuting Attorney]: But he could if he wanted to.
“Mr. Rosenwald: Yes, but we asked him not to.
“Juror Guilfoyle: We wouldn’t have had to deliberate so long if he did.
“A Juror: If — Why would you not?
“Mr. Rosenwald: Because the rules say I have to give them a copy.
“Mrs. Russell: Because I could prepare.
“Juror Haerr: It could have been a piece of paper.
“Juror Guilfoyle: She was having a field day.
*360“Juror Haerr: For all we knew, it could have been a box of paper.
* *
“Juror Depperman: * * * We were squirming. I was. I didn’t know what was going to happen, how long it was going to last, how much longer he was going to be up there.
“I’m trying to work out in my mind when are we going to get the jury charge. * $
“A Juror: * * * When you had the psychologist here as your witness, this was — Were there other people that you could have chosen that were stronger in their background * * * ?”
This discussion reveals not only that Dr. Smalldon, his credentials, and credibility played a role in the jury determinations, but that at least one member of the jury believed that she did not have what may have been important information about the defendant. This is precisely the effect that the Rules of Evidence attempt to avoid and that the prosecutor’s improper conduct was apparently calculated to achieve.
ADDITIONAL MISCONDUCT
Although I believe that the seriousness of the prosecutorial misconduct already addressed is sufficient to support a reversal of the death penalty and a remand for resentencing, it is important to note that the impropriety of the prosecutors’ arguments was not limited to these examples. There were a multitude of other improper remarks made by both prosecutors during cross-examination and closing arguments of the penalty phase.
Prosecutors repeatedly argued and alluded to facts that were inadmissible or not in evidence. For example, the prosecutor questioned Dr. Smalldon about the defendant’s past criminal history, including references to charges for which the defendant had never been convicted. Prosecutors may rebut false or incomplete statements regarding the defendant’s criminal record only where the defense offers a specific assertion, by a mitigation witness or by the defendant, that misrepresents the defendant’s prior criminal history. State v. DePew, 38 Ohio St.3d at 285, 528 N.E.2d at 554. Neither the defendant nor any of the mitigation witnesses misrepresented his prior criminal history. Thus, the prosecutors’ continued attempts to discredit the defendant by introducing additional pieces of his criminal history without independent justification were improper.
The state also took several opportunities to suggest that the defendant was a member of a gang. The allegations of gang affiliation were presented solely by the prosecutor, were not substantiated or based on admitted evidence, and are *361highly inflammatory. In addition, we have previously recognized that this type of argument, even if substantiated, is “gravely improper.” Keenan, 66 Ohio St.3d at 409, 613 N.E.2d at 209. “In relying on the ‘thoroughly discredited doctrine’ of guilt by association, the prosecutor violated ‘a fundamental principle of American jurisprudence, inhabiting a central place in the concept of due process.’ People v. Chambers (1964), 231 Cal.App.2d 23, 28-29, 41 CaLRptr. 551, 555.” Keenan at 409, 613 N.E.2d at 209. Such arguments are highly prejudicial. Id., citing United States v. Labarbera (C.A.5, 1978), 581 F.2d 107, 109.
In addition to those instances previously discussed and acknowledged by the majority opinion, the prosecutors engaged in the following misconduct directly aimed at skewing the basic weighing process, which is the core of the penalty phase. The prosecutor improperly equated mitigation with justification and a lessening of the crime. The prosecutor also repeatedly argued the nature and circumstances of the crime itself (as differentiated from the nature and circumstances of the aggravating circumstances) as factors to be weighed against the mitigating evidence. In closing arguments, the prosecutor misstated facts, for example stating that the defendant had pistol-whipped one of the robbery victims. This is contrary to all testimony and conflicts with the state’s arguments during the guilt phase. Not only was this a misstated fact, but it was characterized as an aggravating circumstance to be weighed against the mitigating evidence. A defense objection was overruled.
The prosecutors used potential areas of mitigation not raised by the defense to inject improper aggravating factors and to appeal to the emotions of the jury. Though the defense never raised the issue in mitigation, the prosecutor introduced the idea that Fears did not kill Lakesha, another victim of the robbery, or her child, only to turn it around as an improper appeal to the emotions of the jury: “You have to look at the nature and circumstances of the murder. Well, when choosing who to kill and what is right and what is wrong, what are the consequences, he did not hurt a mother or her child, just terrorized them. Just left Lakesha with the dead man and blood in her house.” The prosecutor followed this statement with a specific reference to a 911 call, which the majority concedes was improperly admitted at the guilt phase. Though its admission at the guilt phase was harmless error, the error and its prejudicial effect were compounded by its erroneous admission into the penalty phase. See Thompson, 33 Ohio St.3d at 15, 514 N.E.2d at 421.
The admission of this 911 tape and all other evidence not relevant to the aggravating circumstances and not rebutting mitigation evidence first asserted by the defendant violates our holdings in State v. DePew, 38 Ohio St.3d 275, 528 N.E.2d 542; State v. Getsy (1998), 84 Ohio St.3d 180, 201, 702 N.E.2d 866, 887; *362and State v. Gumm (1995), 73 Ohio St.3d 413, 653 N.E.2d 253, syllabus, as well as R.C. 2929.03(D)(1).
The majority misstates the statute and misconstrues prior case holdings when it holds that the court must consider the nature and circumstances of the offense and all related evidence. The statute and the case law require the court to consider the nature and circumstances of the aggravating circumstances only. The nature and circumstances of the offense are to be considered only if raised as a mitigating factor by the defense. See R.C. 2929.03(D)(1); DePew, 38 Ohio St.3d at 289, 528 N.E.2d at 557.
The state also improperly appealed to the jury by alleging that the system had repeatedly tried to help the defendant in the past and that he had received mere slaps on the wrist for previous offenses. We have held that this type of appeal is potentially prejudicial because the jury may want to punish the defendant for previous crimes that he appears to have somehow “gotten away with.” State v. Hutton (1990), 53 Ohio St.3d 36, 44, 559 N.E.2d 432, 442.
This is by no means an exhaustive listing of every improper or potentially prejudicial comment made by the prosecution in this case. Admittedly, if analyzed separately, some of these comments and arguments may seem inconsequential. It is clear, however, that the prosecutors’ impropriety pervaded the trial, especially the penalty phase, and when viewed under the strict harmless error standard applied to the penalty phase of a capital trial, the state cannot establish, beyond a reasonable doubt, that the defendant'was afforded his due process right to a fair trial.
For the aforementioned reasons, I would affirm the conviction but reverse the death penalty and remand for resentencing.
Pfeifer, J., concurs in the foregoing opinion.APPENDIX
“Proposition of Law No. 1: Egregious misconduct by the prosecutor in the penalty phase of capital proceedings requires reversal of the death sentence, and where the prosecutor frequently injects improper and prejudicial matter after defense objections have been sustained, argues nonstatutory aggravating factors, argues Tacts’ outside the evidence, employs inflammatory remarks and invective against the accused and his counsel, a death sentence based on a jury verdict following such tactics and arguments violates due process and the Eighth Amendment of the United States Constitution, and their counterparts in the Ohio Constitution.
“Proposition of Law No. 2: It is impermissible for a sentencer in a capital case to weigh the nature and circumstances of the offense as an aggravating circumstance, to weigh as aggravating an aggravating circumstance which the law *363requires to be merged with another such circumstance for sentencing purposes, and to weigh the mitigating factors separately (rather than collectively) against the aggravating circumstances, and, where the sentencing opinion of the trial court reveals that such errors occurred in the imposition of the death sentence, the death sentence imposed violates the offender’s constitutional rights under the Eighth and Fourteenth Amendments to the U.S. Constitution, and Art. I Secs. 9 and 16 of the Ohio Constitution, and must be reversed.
“Proposition of Lato No. 3: Where, as the result of one indivisible course of conduct, a defendant is charged with aggravated robbery, aggravated burglary and kidnapping, with separate capital specifications for each of those felonies, in a prosecution for aggravated murder as well as for the underlying felonies, the trial court must merge the kidnapping specification, the aggravated burglary specification, or both, with the other felony specification prior to the penalty phase, must instruct the jury not to consider the merged specifications separately, and must not itself consider separately the merged aggravating factors in the trial court’s sentencing calculations; a death sentence imposed following proceedings where all three capital specifications are considered, and weighed, violates the Eighth Amendment requirement that death sentences be reliable, and be imposed only upon consideration of proper aggravating factors.
“Proposition of Law No. A Where capital specifications are duplicative, they must be merged prior to sentencing proceedings, upon motion of the accused, or by the court on its own motion. The failure of the trial court, sua sponte, to merge such specifications constitutes a violation of the rights of the accused under the United States Constitution and the Ohio Constitution as well where the death sentence is imposed thereafter.
“Proposition of Law No. 5: The power conferred by R.C. 2929.05 upon appellate courts to review aggravating and mitigating factors, and to determine the appropriateness of a given death sentence, is subordinate to the right of the accused to trial by jury under Art. I Secs. 5 and 10 of the Ohio Constitution.
“Proposition of Law No. 6: Unless it can fairly be held beyond a reasonable doubt that penalty phase error in a capital trial had no effect upon the jury’s sentencing verdict, appellate courts are rendered powerless by the right to trial by jury set forth in the Ohio Constitution, Art. I Secs. 5 and 10, from purporting to ‘cure’ the error and to affirm the death sentence; any such affirmance violates the right of the accused to trial by jury, and the death sentence must be vacated and set aside.
“Proposition of Law No. 7: The affirmance of a death sentence by an appellate court which has reweighed the aggravating and mitigating factors absent duplicative and improper aggravating circumstances originally considered and weighed by the jury in recommending the death sentence, constitutes a *364violation of the right of the accused under the Eighth Amendment to have the death sentence imposed only after the proper procedures have been followed under the state scheme for imposing the death sentence, and also constitutes a violation of the right to due process of law in that such appellate reweighing abrogates the liberty interest created by state law to jury participation in the capital sentencing process.
“Proposition of Law No. 8: Only the relevant evidence from the guilt/innocence phase of a capital prosecution may be reintroduced at the penalty phase, and it is a violation of the Eighth Amendment prohibition against cruel and unusual punishment and of the Fourteenth Amendment right to due process of law for the state to introduce, and the trial court to admit, all evidence at the penalty phase which was admitted at the guilt phase, and to instruct the jury to consider same, and for the trial court itself to consider such evidence in its own sentencing decision.
“Proposition of Law No. 9: Where the state fails to establish beyond a reasonable doubt that aggravation outweighs mitigation beyond a reasonable doubt, the death penalty is absolutely precluded, and the imposition of the death sentence under such circumstances constitutes a violation of the offender’s constitutional right to be free of cruel and unusual punishment and also his right to due process of law.
“Proposition of Law No. 10: Under the Ohio capital statutes, for purposes of proportionality review, death sentences must be compared with all other cases within the jurisdiction in which the death sentence was imposed, as well as those capital cases in which it was not imposed.
“Proposition of Law No. 11: The Ohio death penalty statutes are unconstitutional, violating the Eighth Amendment proscription of cruel and unusual punishments, the Fourteenth Amendment guarantees to due process of law and to the equal protection of the laws, and also violating the concomitant provisions of the Ohio Constitution.
“[Sub-Proposition of Law 11(A): ] The death penalty is so totally without penological justification that it results in the gratuitous infliction of suffering, and that consequently, there is no rational state interest served by the ultimate sanction.
“[Sub-Proposition of Law 11(B):] Both locally, statewide and nationally, the death penalty is inflicted disproportionately upon those who kill whites as opposed to those who kill blacks, and even within Hamilton County, the death penalty is selectively imposed, rendering the penalty as applied in Hamilton County arbitrary and capricious on the one hand, and the product of racial discrimination on the other.
*365“[Sub-Proposition of Law 11(C): ] The use of the same operative fact to first elevate what would be ‘ordinary’ murder to aggravated murder, and then to capital, death-eligible aggravated murder permits the state (1) to obtain a death sentence upon less proof in a felony murder case than in a case involving prior calculation and design, although both crimes are ostensible equally culpable under the Revised Code, and (2) fails to narrow the capital class to those murderers for whom the death penalty is constitutionally appropriate.
“[Sub-Proposition of Law 11(D): ] The requirement that a jury must recommend death upon proof beyond a reasonable doubt that the aggravating circumstances outweigh only to the slightest degree the mitigating circumstances renders the Ohio capital statutes quasi-mandatory and permits the execution of an offender even though the mitigating evidence falls just short of equipoise with the aggravating factors, with the result that the risk of putting someone to death when it is practically as likely as not that he deserves to live renders the Ohio capital process arbitrary and capricious, and, in the absence of a requirement that, before death may be imposed, aggravating factors must substantially outweigh mitigating factors, unconstitutional. [Emphasis sic.]
“[Sub-Proposition of Law 11(E): ] The Ohio capital statutes are constitutionally infirm in that they do not permit the extension of mercy by the jury even though aggravating factors may only slightly outweigh mitigating factors.
“[Sub-Proposition of Law 11(F): ] The provisions of Crim.R. 11(C)(3) permitting a trial court to dismiss specifications upon a guilty plea only under the nebulous and undefined concept ‘in the interests of justice’ (1) needlessly encourages guilty pleas and the concomitant waiver of the right to jury, to compulsory process and to confrontation and (2) reintroduces the possibility that the death sentence will be imposed arbitrarily and capriciously.
“[Sub-Proposition of Law 11(G):] The Ohio capital sentencing scheme is unconstitutional because it provides no standards for sentencing or review at several significant stages of the process and consequently death sentences are imposed, and reviewed, without sufficient statutory guidance to juries, trial courts and reviewing courts to prevent the unconstitutional arbitrary and capricious infliction of the death penalty.
“[Sub-Proposition of Law 11(H):] The decision^] of the Supreme Court of Ohio in [State v. Gumm (1995), 73 Ohio St.3d 413, 653 N.E.2d 253, and State v. Wogenstahl (1996), 75 Ohio St.3d 344, 662 N.E.2d 311] [have] rendered the Ohio capital statutes unconstitutional in that they encourage, rather than prevent, the arbitrary and capricious imposition of the penalty of death.
“[Sub-Proposition of Law 11(1):] The amendments to the Ohio Constitution occasioned by the passage of Issue One, and the amendments to the Revised *366Code enacted by the General Assembly to facilitate the changes in the Ohio Constitution governing capital cases, violate the right of capital defendants to be free from cruel and unusual punishments, secured to them by the Eighth Amendment to the U.S. Constitution, and to due process of law and the equal protection of the laws secured to them by the Fourteenth Amendment to the U.S. Constitution. The amendment to R.C. 2953.02, purporting to enable the [Ohio] Supreme Court to weigh evidence in a capital case, violates the Ohio Constitution.
“Proposition of Law No. 12: It is impermissible under the Eighth and Fourteenth Amendments to the U.S. Constitution and Art. I Secs. 9 and 16 of the Ohio Constitution for the jury to be informed that a death verdict is merely a recommendation, which instruction impermissibly attenuates the jury’s sense of responsibility for its decision.
“Proposition of Law No. IS: Where jury instructions at the penalty phase of capital proceedings misstate the law to the jury, fail to define mitigating factors, exclude relevant mitigation, and is [sic ] otherwise erroneous and misleads [sic ] the. jury, ■ the resulting death sentence violates the Eighth and Fourteenth Amendments, and Art. I Secs. 9 and 16 of the Ohio Constitution, and must be reversed.
“Proposition of Law No. Ik: The increased need for reliability required in capital cases by the Ohio and federal Constitutions mandates the granting to the defense [of] more than six peremptory challenges.
“Proposition of Law 15: A defendant who has been sentenced to death has been deprived of the reliable proceedings secured by the Eighth Amendment, as well as his right to due process of law under the Fourteenth Amendment, and their Ohio counterparts, where all of the proceedings are not recorded as required by law.
“Proposition of Law No. 16: It is a violation of the Sixth Amendment right of confrontation, as well as Ohio law, for the trial court to permit the testimony of a witness identifying the accused, when the witness did not see the defendant, but was merely told by others that the defendant was involved.
“Proposition of Law No. 17: A motion to suppress identification must be granted where a purported eyewitness admits that she did not see the defendant at the scene of the crime at the time of the crime.
“Proposition of Law No. 18: Where the state fails to prove beyond a reasonable doubt the essential elements of purpose to kill and prior calculation and design, convictions for aggravated murder must be reversed as contrary to the right of the accused to due process of law under the Ohio and federal Constitutions.
*367“Proposition of Law No. 19: Convictions for aggravated murder which are contrary to the manifest weight of the evidence must be reversed, as contrary to the right of the accused to due process of law under the Ohio and Federal Constitutions.
“Proposition of Laio No. 20: The trial court erred to the prejudice of appellant’s right to due process under the Fourteenth Amendment, and his Eighth Amendment rights as well, in entering judgment of conviction on the aggravated robbery, aggravated burglary and kidnapping counts, and the capital specifications based thereon, as those offenses were allied offenses of similar import, and while an offender may be charged with all such offenses, he may be convicted of only one.
“Proposition of Law No. 21: Continuous misconduct by the prosecution in the guilt phase of capital proceedings which prejudices the defendant’s right to a fair trial violates due process and requires reversal of the conviction.
“Proposition of Law No. 22: Where a witness’ credibility has been attacked by the defense, the state may not rehabilitate that witness with a prior consistent statement made after the motive to falsify came into existence.
“Proposition of Laio No. 23: Where the defense attacks the element of intent, but does not raise a specific defense, the state should not be allowed to interject a specific defense, and the court should not give an instruction on that specific defense.
“Proposition of Law No. 2L A death sentence recommended by a jury from service on which one or more veniremen were excused because of their views concerning capital punishment cannot stand unless it affirmatively appears on the record that each such venireman excused for cause unequivocally indicates that his scruples against capital punishment will automatically prevent him from recommending the death penalty and/or that such views will render him unable to return a verdict of guilty no matter what the evidence, and that he is prevented by his scruples from following the instructions of the court and considering fairly the imposition of the death sentence.
“Proposition of Law No. 25: Appellant’s right to an impartial jury under the Sixth Amendment to the United States Constitution and Article I, Section 5 of the Ohio Constitution and to due process under the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Section 16 of the Ohio Constitution were violated by the eourt[’]s abuse of discretion in refusing to grant appellant’s motion for individual sequestered voir dire.
“Proposition of Law No. 26: Where the defendant in a capital murder trial is deprived of the effective assistance of counsel at both the guilt/innocence and penalty phases of his trial, his conviction and death sentence offend the Sixth, *368Eighth and Fourteenth Amendments to the United States Constitution, and their counterparts in the Ohio Constitution, and must be reversed, and a new trial granted.
“Proposition of Law No. 27: A defendant’s statements about the offense to a defense mitigation psychologist are subject to the Fifth Amendment privilege against self-incrimination, and it is a violation of that right, and the doctor-patient and attorney-client privilege, as well as the Sixth Amendment right to counsel, for the trial court to overrule defense objections and to require the testifying mitigation psychologist to testify as to what he was told by the defendant about the nature and circumstances of the offense.
“Proposition of Law No. 28: Where, during a criminal trial, there are multiple instances of error, and the cumulative effect of such errors deprives the accused of a fair trial and undermines the reliability of the conviction and the sentence of death imposed upon a jury verdict, the rights of the accused to due process and to be free from cruel and unusual punishment, under the Fourteenth and Eighth Amendments, respectively, of the United States Constitution, and their corollaries in the Ohio Constitution, have been violated, requiring reversal.”
. Though the following is not a comprehensive listing of all the capital cases in which this court has addressed some form of prosecutorial misconduct, the following capital cases, all decided after our decision in DePew, involve prosecutorial misconduct that has been criticized by this court. See, e.g., *352State v. Keenan (1993), 66 Ohio St.3d 402, 405-409, 613 N.E.2d 203, 206-209 (reversed and remanded for new trial); State v. Raglin (1998), 83 Ohio St.3d 253, 699 N.E.2d 482; State v. Getsy (1998), 84 Ohio St.3d 180, 702 N.E.2d 866; State v. Davie (1997), 80 Ohio St.3d 311, 686 N.E.2d 245; State v. Henness (1997), 79 Ohio St.3d 53, 679 N.E.2d 686; State v. Davis (1996), 76 Ohio St.3d 107, 666 N.E.2d 1099; State v. Brooks (1996), 75 Ohio St.3d 148, 661 N.E.2d 1030; State v. Wogenstahl (1996), 75 Ohio St.3d 344, 662 N.E.2d 311; State v. Hill (1996), 75 Ohio St.3d 195, 661 N.E.2d 1068; State v. Lundgren (1995), 73 Ohio St.3d 474, 653 N.E.2d 304; State v. Williams (1995), 73 Ohio St.3d 153, 652 N.E.2d 721; State v. Lorraine (1993), 66 Ohio St.3d 414, 613 N.E.2d 212; State v. Evans (1992), 63 Ohio St.3d 231, 586 N.E.2d 1042; State v. Murphy (1992), 65 Ohio St.3d 554, 605 N.E.2d 884; State v. Combs (1991), 62 Ohio St.3d 278, 581 N.E.2d 1071; State v. Durr (1991), 58 Ohio St.3d 86, 568 N.E.2d 674; State v. Wiles (1991), 59 Ohio St.3d 71, 571 N.E.2d 97; State v. Tyler (1990), 50 Ohio St.3d 24, 553 N.E.2d 576; State v. Lott (1990), 51 Ohio St.3d 160, 555 N.E.2d 293; State v. Landmm (1990), 53 Ohio St.3d 107, 559 N.E.2d 710; State v. Hutton (1990), 53 Ohio St.3d 36, 559 N.E.2d 432; State v. Johnson (1989), 46 Ohio St.3d 96, 545 N.E.2d 636; State v. Greer (1988), 39 Ohio St.3d 236, 530 N.E.2d 382; State v. Bedford (1988), 39 Ohio St.3d 122, 529 N.E.2d 913.
. The state was represented in this case by two assistant prosecutors. Both counsel engaged in similar forms of misconduct and neither was limited to isolated incidents. Because the misconduct of both prosecutors is of a similar nature and degree, and because such misconduct is representative of prosecutorial misconduct in other cases and in other counties, this opinion will not differentiate between the individual prosecutors when discussing the improper conduct at issue in this case.