(dissenting):
I respectfully dissent. I would hold that the appellant was prejudiced by the guilt phase closing argument of the solicitor and thereby denied the right to a fair trial. I would reverse and remand for a new trial.
The following argument and colloquy transpired during the solicitor’s closing argument in the guilt phase of appellant’s bifurcated trial.
Solicitor Murdaugh: Ya’ll heard the testimony of Ralph Garner. They attempted to make something out of it that he had changed his story. He got on that witness stand and he told ya’ll, and to be honest with you, I think he should have been convicted at the last trial. I don’t know whether ya’ll know that he wasn’t, but I’m sure that you- — well, I think all of you know that he wasn’t convicted. I personally, if I’d been on the jury—
The Court: Solicitor? Ladies and gentlemen, I don’t think we ought to.... That’s outside of the facts of this particular case and I’m going to instruct the jurors to disregard any inference or any reference to that whatsoever.
Mr. Murdaugh: Okay, sir. May I—
The Court: No, sir, I’m going to instruct you not to refer to any other trials. Let’s not to refer to any other trials.
*547Let’s confine ourselves—
Mr. Murclaugh: Okay, sir.
The Court:— to this trial.
Appellant’s co-defendant Ralph Garner was called to testify by the state; and I construe the solicitor’s comment concerning Garner’s testimony as an attack upon the credibility of his own witness, in contravention of the holding in State v. Bailey, 298 S.C. 1, 377 S.E. (2d) 581 (1989). The solicitor then informed appellant’s jury that Garner had been acquitted — a fact outside the record and beyond the permissible scope of argument. State v. Caldwell, 300 S.C. 494, 388 S.E. (2d) 816 (1990).
The solicitor continued his argument with the statement that co-defendant Garner “had not been convicted at the last trial” and interjected the opinion that the solicitor thought “he should have been.” This Court held in State v. Sloan, 278 S.C. 435, 298 S.E. (2d) 92 (1982), that it was improper for the solicitor to argue that if the defendant was not convicted, the murder would remain unsolved. The Sloan Court concluded that the guilt phase closing argument of the solicitor impermissibly invited the jury to base its decision on fear and speculation, both arbitrary factors affecting determination of the defendant’s guilt. Our Court addressed this issue in State v. Woomer, 277 S.C. 170, 175, 284 S.E. (2d) 357, 359 (1981), as follows:
When a solicitor’s personal opinion is explicitly injected into the jury’s deliberations as though it were in itself evidence justifying a sentence of death, the resulting death sentence may not be free from the influence of any arbitrary factor as required by S.C. Code § 16-3-25(0(1), and by the Eighth Amendment to the United States Constitution. Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed. (2d) 393 (1977); Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed. (2d) 392 (1980). Accordingly, the solicitor’s jury arguments in this case require that appellant’s sentence of death be set aside.
Collaterally, the majority opinion assigns undue weight to the fact that appellant’s trial attorney did not object to the solicitor’s comments and did not move for a mistrial. The record *548reflects that this review was conducted in favorem vitae.1 The majority finds, alternatively, that the trial judge’s curative instructions eliminated any prejudice arising from the improper argument. I would hold that the harm resulting from comments so egregiously prejudicial was incapable of remediation by a curative instruction from the court. However, even if a curative charge could have sufficed, the trial judge’s “mere general remark excluding the evidence” was inadequate as a corrective instruction. See State v. Smith, 290 S.C. 393, 350 S.E. (2d) 923 (1986).
The majority relies upon State v. Dawkins, 297 S.C. 386, 392, 377 S.E. (2d) 298, 302 (1989), to support holding that the erroneous argument in the case now under consideration was cured by the trial judge’s subsequent instruction. As I read the case, Dawkins is distinguishable in at least three significant particulars in that, first, it was not a capital case. Second, the improper argument in Dawkins was made during opening statements — not closing arguments. Third, in his opening statement, the solicitor called upon the Dawkins jury to “listen closely to all the evidence, every witness the State has and every witness for the defense. Once you see the two stories side by side and hear the testimony, you’ll be convinced. ...” The ensuing curative charge by the trial judge was specific and included a declaration that the defense was not required to put up any evidence. On appeal, the instruction was upheld as sufficient to cure the error. Furthermore, we noted that any prejudice resulting from the solicitor’s opening comments concerning the defendant’s prospective evidence was cured by the fact that the defendant did testify— and presented 24 other witnesses.
Conversely, it is clear from the record before us that under the facts of this case and in light of the applicable law, the solicitor’s closing argument “so infected the trial with unfairness” as to result in a denial of appellant’s due process rights, in violation of State v. Hawkins, 292 S.C. 418, 421, 357 S.E. (2d) 10, 12 (1987); and the mandate of Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed. (2d) 431 (1974).
*549I would hold that the closing argument of the solicitor interjected an arbitrary factor into the jury’s consideration and denied the appellant a fair trial, in violation of the eighth amendment of the United States Constitution. I would reverse and remand for a new trial.
Toal, J., concurs.
This case was tried approximately six weeks before the decision in State v. Torrence, 305 S.C. 45, 406 S.E. (2d) 315 (1991), which abolished the doctrine of infavorem vitae.