concurring in part and dissenting in part:
While I concur in parts II, V, VI, and VII of the majority’s opinion, the issues raised in parts I, III, and IV compel me to dissent in this death penalty case.
The murder committed by Robyn Parks was, as all murders are, a personal tragedy for the victim’s family and an affront to society’s moral sensibilities. Yet, capital punishment is not the usual punishment inflicted in capital murder cases. As Justice Brennan recounted in 1972:
There has been a steady decline in the infliction of this punishment in every decade since the 1930’s, the earliest period for which accurate statistics are available. In the 1930's, executions averaged 167 per year; in the 1940’s, the average was 128; in the 1950's, it was 72; and in the years 1960-1962, it was 48. There have been a total of 46 executions since then, 36 of them in 1963-1964. Yet our population and the number of capital crimes committed have increased greatly over the past four decades.
Furman v. Georgia, 408 U.S. 238, 291, 92 S.Ct. 2726, 2753, 33 L.Ed.2d 346 (1972) (Brennan, J., concurring) (emphasis added and footnote omitted). In the pre-Furman era, less than twenty percent of those convicted of murder were sentenced to death in those states that authorized capital punishment. See Woodson v. North Carolina, 428 U.S. 280, 295 n. 31, 96 S.Ct. 2978, 2987 n. 31, 49 L.Ed.2d 944 (1976). Even if current statistics regarding the rate of imposition of the death penalty in the post-Ñwr-man era would show a dramatic increase in its use, I have no doubt that the rate fails to approach by an exceedingly large margin the rate of homicides in this country. The disparity is for good reason. “[TJhis most irrevocable of sanctions should be reserved for a small number of extreme cases.” Gregg v. Georgia, 428 U.S. 153, 182, 96 S.Ct. 2909, 2929, 49 L.Ed.2d 859 (1976). The relatively low incidence of the death penalty as compared to the homicide rate in this country indicates that juries obviously agree with this proposition.
At common law, the death sentence was mandatory for all convicted murderers. In twentieth century America, the use of the death penalty was reduced both by narrowing the class of murders to which the penalty attached and by vesting the jury with discretion in the penalty’s imposition. See Eddings v. Oklahoma, 455 U.S. 104, 110-11, 102 S.Ct. 869, 874-75, 71 L.Ed.2d 1 (1982); Gregg, 428 U.S. at 176-79, 96 S.Ct. at 2926-28. The Gregg Court rejected the notion that our “standards of decency had evolved to the point where capital punishment no longer could be tolerated.” Id. at 179, 96 S.Ct. at 2928. However, the Court recognized that the penalty’s imposition must be tailored so as to avoid arbitrary and capricious imposition based on irrelevant biases and prejudices. A death sentence imposed because of these impermissible considerations violates the eighth amendment. Even a cursory reading of the gost-Furman cases reveals that, through principles enunciated in those cases, the Court has attempted to restrict the jury’s attention only to those considerations that may properly impact on the individual sentencing determination before them. In fact, the issues in parts I and II that follow involve precisely such issues.
The evolution of capital punishment for the crime of murder thus evinces the conclusion that to be constitutional today, a death sentence must be closely intertwined with the facts of the murder and the propensities of the defendant and must not be actuated by extraneous influences. Although the jury may not be discriminatory, it is constitutionally bound to be discriminating. The decision to impose the death penalty in a particular murder case properly revolves around such parameters as the depravity of the murder (i.e., a torture-killing, multiple and hideous wounds, etc.) *1513and the demonstrated violent propensities of the defendant. These are the types of factors that differentiate those “routine murder case[s],” Jackson v. Virginia, 443 U.S. 307, 328, 99 S.Ct. 2781, 2794, 61 L.Ed.2d 560 (1979) (Stevens, J., concurring), that do not result in the imposition of the death sentence from those far fewer murder cases that do result in the death penalty.
In short, the post-Furman cases have established guidelines to ensure that juries do not impose the death sentence in the “routine murder case” but rather only in those extraordinary murder cases that warrant it. At bottom, though unarticulated, is a sense of proportionality in sentencing. When the death sentence is imposed in the “ordinary” murder case, the likelihood that impermissible factors influenced the sentencing determination is increased.
Along with those murders committed in the heat of passion by someone known to the victim, murder committed in the course of committing a robbery seems to me to epitomize the “run-of-the-mill” murder. The victim in this case was killed by a single gunshot wound to the chest, apparently when Mr. Parks attempted to buy gasoline with a stolen credit card. The facts do not indicate that Mr. Parks stopped at this station expressly to kill the attendant. There was no evidence of torture or other wounds. His only prior conviction was as a juvenile and involved a schoolyard scuffle. As unfortunate as these facts are, the imposition of the death sentence for this murder is disquieting, unless the death penalty is to be imposed in every murder case. Its imposition in this case thus requires close scrutiny to ensure that the jury’s focus was properly channeled to only those considerations that may appropriately impact upon the sentencing determination.
I.
I agree with defendant’s contention that the prosecutor’s remarks in the sentencing phase of the trial violated the principles articulated in Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). The Supreme Court has recently interpreted Caldwell to prohibit those comments “that mislead the jury as to its role in the sentencing process in a way that allows the jury to feel less responsible than it should for the sentencing decision.” Darden v. Wainwright, 472 U.S. 320, 106 S.Ct. 2464, 2473 n. 15, 86 L.Ed.2d 231 (1986) (emphasis added). Near the close of his argument in chief, the prosecutor made the following remarks:
And then you may say, well, you know, yeah, I still mean it, I could, without doing violence to my conscience if this was a proper case; but, you know, I really don’t want it on my hands that I had anything to do with anybody dying. So for that reason, although this is a proper case, I don’t want to assess the death penalty because I just don’t want to have to think about that. I don’t want it on my conscience.
Well, I don’t think it’s on Robyn Parks’ conscience that he took an innocent person’s life away; and I don’t believe in observing him throughout this trial and his testimony and listening to his voice on the tapes — I don’t feel like there’s the least bit of remorse in him over what he did. But, you know, as you as jurors, you really, in assessing the death penalty, you’re not yourself putting Robyn Parks to death. You just have become a part of the criminal-justice system that says when anyone does this, that he must suffer death. So all you are doing is you’re just following the law, and what the law says, and on your verdict — once your verdict comes back in, the law takes over. The law does all of these things, so it’s not on your conscience. You’re just part of the criminal-justice system that says when this type of type of [sic] thing happens, that whoever does such a horrible, atrocious thing must suffer death.
Now, that’s man’s law. But God’s law is the very same. God’s law says that the murderer shall suffer death. So don’t let it bother your conscience, you know.
Record, vol. 6, at 707-08.
Such an argument was designed to do precisely that which Caldwell specifically *1514prohibits: to allow the jurors to minimize their sense of personal responsibility for imposing the death sentence. “[I]t is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant’s death rests elsewhere.” Caldwell, 472 U.S. at 328-29, 105 S.Ct. at 2639-40. Such delegation of sentencing responsibility “presents an intolerable danger of bias toward a death sentence.” Id. at 331, 105 S.Ct. at 2640.
The prosecutor’s statements here freed the jurors from personal accountability for Mr. Parks’ sentence of death by arguing that all the jury was doing in assessing the death penalty was following the mandates of the law. By implying that the law affirmatively prescribed the death penalty in this case, minimizing any sense of jury discretion in imposing the death sentence, the prosecutor allowed the jurors to feel as if their “hands were tied.” He allowed them to feel as if they weren’t choosing to impose the death penalty; the law required it. Portions of his argument merit repeating for illustration:
You just have become a part of the criminal-justice system that says when anyone does this, that he must suffer death.... [Ojnce your verdict comes back in, the law takes over. The law does all of these things.... You’re just part of the criminal-justice system that says when this type of type of [sic] thing happens, that whoever does such a horrible, atrocious thing must suffer death.
Record, vol. 6, at 707 (emphasis added). In essence, he told the jurors that they were not responsible for sentencing Robyn Parks to death; the ephemeral “criminal justice system” was responsible. The jurors were invited to shift, or at least diffuse, their sense of ultimate responsibility to “the law” that required them to sentence Mr. Parks to death.
The majority opinion finds the statements made in this case to be “quite similar,” maj. op. at 1504, to those we found to be constitutional in both Dutton v. Brown, 812 F.2d 593 (10th Cir.1987) (en banc), and Coleman v. Brown, 802 F.2d 1227 (10th Cir.1986).1 I very much disagree and set out in the margin the challenged statements made in those cases for comparison purposes.2
*1515The prosecutor in Dutton attempted to define the juror’s roles functionally instead of individually but did not minimize the juror’s sense of responsibility within those roles. The remarks in Coleman stressed that the defendant was responsible for his own plight but did not intimate that the awesome responsibility of imposing the death sentence did not rest solely with the jury. The statements made in the present case were much more egregious, directed squarely at attempting to ameliorate any sense of accountability for the decision that this man must be executed.
Moreover, we found it critical in both Dutton and Coleman that the prosecutor made subsequent remarks stressing the importance and exclusivity of the jury’s role in the sentencing determination. “It is clear that, when taken in context, the statement of the prosecutor was not constitutionally impermissible.... Indeed, the tenor of the remainder of the closing was that the crucial determination of punishment was the sole function of the jury.” Dutton, 812 F.2d at 596-97 (emphasis added). “Moreover, viewing this argument in context, it is evident that the prosecutor had no intention of diminishing the jury’s sense of responsibility.” Coleman, 802 F.2d at 1241 (emphasis added). We quoted the prosecutor’s subsequent remarks at length in our Coleman opinion. See id. In the present case, the prosecutor made no additional remarks that may have mollified his impermissible comments. He basically closed his argument in chief with the unconstitutional statements.
The Supreme Court’s concluding statement in Caldwell is equally applicable in this case.
This Court has always premised its capital punishment decisions on the assumption that a capital sentencing jury recognizes the gravity of its task and proceeds with the appropriate awareness of its “truly awesome responsibility.” In this case, the State sought to minimize the jury’s sense of responsibility for determining the appropriateness of death. Because we cannot say that this effort had no effect on the sentencing decision, that decision does not meet the standard of reliability that the Eighth Amendment requires.
Caldwell, 472 U.S. at 341, 105 S.Ct. at 2646.
II.
The defendant challenges the following instruction given during the penalty phase: “You must avoid any influence of sympathy, sentiment, passion, prejudice or other arbitrary factor when imposing sentence.” The anti-sympathy instruction held constitutional in California v. Brown, 479 U.S. 538, 107 S.Ct. 837, 93 L.Ed.2d 934 (1987), informed the jurors that they “must not be swayed by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling.” Id. at 839. The majority in this case notes that the present instruction does not include the word “mere” but cursorily concludes without explanation that “such, under Brown, does not dictate a reversal in the instant case.” Maj. op. at 1505. By denigrating any significance in the additional word “mere” in the Brown instruction, this majority misses the thrust of the Supreme Court’s analysis in upholding the instruction in that case. Moreover, the majority fails to consider the significance of the modifying phrase in the present instruction — “any influence of”— as it relates to the Brown analysis. Such modifiers as “mere” and “any,” however, are critical to the analysis. In Brown, Justice Rehnquist wrote, “By concentrating on the noun ‘sympathy,’ respondent ignores the crucial fact that the jury was instructed to avoid basing its decision on mere sympathy.” Id. at 840 (emphasis added only to “crucial fact”). Likewise, the majority in this case ignores the crucial fact that the jury was instructed to avoid basing its decision on any influence of sympathy.
Not all forms of sympathy are impermissible considerations in the sentencing decision. Only general feelings of sympathy *1516not connected to the particular defendant and the evidence introduced are prohibited, for such would allow the imposition of the death sentence in an arbitrary and unpredictable fashion. The Brown court recognized that there are different “sorts” of sympathy and that sympathy tethered to evidence introduced during the penalty phase, such as evidence of a disadvantaged background or emotional problems, is a proper element for the jury to consider when deciding whether to impose the death penalty.3 “We think a reasonable juror would ... understand the instruction not to rely on ‘mere sympathy’ as a directive to ignore only the sort of sympathy that would be totally divorced from the evidence adduced during the penalty phase.” Id. at 840 (emphasis added). “[individualized consideration of mitigating factors,” Lockett v. Ohio, 438 U.S. 586, 606, 98 S.Ct. 2954, 2965, 57 L.Ed.2d 973 (1978) (emphasis added), is the key, which is why sympathy rooted in the evidence presented for a particular defendant is permissible whereas generalized, “untethered” sympathy is not. Cf. Eddings, 455 U.S. at 112-16, 102 S.Ct. at 875-78 (evidence of turbulent family history, of beatings by a harsh father, and of serious emotional disturbance proper consideration in assessing death penalty); Woodson, 428 U.S. at 303, 96 S.Ct. at 2990 (must allow “particularized consideration of relevant aspects of the character and record of each convicted defendant”). The entire thrust of the majority’s opinion in Brown was that an instruction prohibiting “mere sympathy” sufficiently conveyed that critical distinction to the jury. The majority and dissent in Brown parted ways not on the assumption that sympathy rooted in evidence is a proper consideration in sentencing, but rather on whether the instruction at issue sufficiently instructed the jury regarding the difference between “tethered” (permissible) and “untethered” (impermissible) sympathy. See Brown, 107 S.Ct. at 843 (Brennan, J., dissenting).4
The instruction in the instant case fails to differentiate that sympathy which may permissibly impact upon the sentencing decision from that which may not. It prohibited “any influence of sympathy,” which is qualitatively quite different from avoiding “mere sympathy.” It forecloses any possibility of considering sympathy of any sort and is thus distinguishable on a critical point — the point on which the Supreme Court’s analysis was founded — from the instruction narrowly condoned in Brown. By prohibiting consideration of all sorts of sympathy, the instruction violated Ed-dings, Lockett, and Woodson and hence fails constitutional muster. Moreover, the instructions given as a whole failed to cure this fatal defect. See Brown, 107 S.Ct. at 839 (if specific instruction fails, must then *1517review entire charge to determine whether it delivered a correct interpretation of the law).
The damage is particularly acute in this case because the only mitigating evidence presented was testimony from defendant’s father with respect to defendant’s difficult childhood spent in various relatives’ homes and his generally nonviolent nature. The jury was instructed to ignore any influence of sympathy — presumably even that sympathy tethered to this testimony, defendant’s sole mitigating evidence. It is constitutionally impermissible to prohibit the jury from considering, relative to the individual offender, those “compassionate or mitigating factors stemming from the diverse frailties of humankind." Woodson, 428 U.S. at 304, 96 S.Ct. at 2991. Brown v. California does not shield such an instruction.
III.
The defendant requested and was denied a lesser included offense instruction for second degree murder involving homicide while committing the felony of using a fraudulent credit card. Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), provides that there is a constitutional right, at least when the death penalty is imposed, to a lesser offense instruction warranted by the evidence. See generally Trujillo v. Sullivan, 815 F.2d 597, 600-04 (10th Cir.1987) (discussing whether Beck extends the constitutional right to cases in which the death penalty is not imposed). As a matter of federal constitutional law, Mr. Parks was thus entitled to his instruction as long as there was evidence before the jury to support it, whether or not the Oklahoma courts would apply a stricter standard for the giving of such an instruction under state law.5
*1518The majority concludes that defendant’s alibi defense precludes any lesser offense instruction, implying that any evidence in the record supporting a lesser offense instruction must come from the defendant to entitle him to the instruction. “Parks testified in his own behalf and denied killing Ibrahim, testifying that he was elsewhere at the time of the homicide. So, there is nothing in defendant’s testimony that would justify giving an instruction on second-degree murder.” Maj. op. at 1501 (emphasis added).
I simply find no law for this proposition, and I think it would be a bad rule to write. Anytime a defendant honestly denied participation in a crime, he or she would automatically forego the right to an instruction on a lesser offense supported by other evidence before the jury. Even if the evidence, albeit from a source other than the defendant, were overwhelming that a lesser offense was committed, no instruction could be given unless the defendant, possibly perjuring himself or herself, admits some participation in the incident. Fearing conviction of the greater offense even though innocent, a defendant is caught between maintaining his or her innocence, risking such a conviction, and falsely admitting participation so as to gain a lesser offense instruction. Such coercion is constitutionally untenable. If the evidence of a lesser offense is before the jury, defendant’s entitlement to a lesser offense instruction should not depend upon whose witness introduced the evidence. A jury could reject the defendant’s alibi defense but accept that the evidence supports conviction on the lesser offense rather than the greater.
There was sufficient evidence before the jury in this case to support a lesser offense instruction. The two taped telephone conversations around which the prosecution’s entire case revolved furnished evidence sufficient to give an instruction that the homicide was committed while using a stolen credit card. See ct. ex. 1, 2, record, vol. 5. (And, in a sense, the evidence did come from the defendant through his taped conversations.)
In meeting this evidence, the majority does what is solely within the jury’s province to do. It interprets the evidence as showing that the felony of using a stolen credit card was completed and only “thereafter’ did Mr. Parks form “a deliberate intent to kill.” Maj. op. at 1501. Whether the predicate offense supporting the second degree murder charge ended the moment Mr. Parks paid for the gasoline but before he left the station so that any action “thereafter” was not connected to the offense or actuated by the offense is. a matter for the jury in deciding whether to convict on the lesser offense — an option the jury was never given in this case. Indeed, whether in fact the killing occurred after defendant completed the credit card transaction is not clear from the evidence and is a fact appropriately determined only by the jury. These are not matters to be decided in evaluating whether there was sufficient evidence supporting an instruction.
We need not be convinced that the crime committed was second degree murder rather than first degree murder. That differentiation is for the jury to make. Our job is merely to consider whether there was sufficient evidence in the record, from whatever source, to justify at least giving the instruction. The majority, rather than examining the record evidence of second degree murder to determine its existence for purposes of instruction, has evaluated such evidence and rejected it in favor of the evidence supporting first degree murder. That is an usurpation of the jury’s function.
Moreover, the assertion that there was no evidence in the record of homicide while committing the felony of using a fraudulent credit card is at direct odds with the trial court’s instructions in the penalty phase regarding the applicable aggravating circumstances. The Bill of Particulars *1519read to the jury asserted the following as an aggravating circumstance supporting the imposition of the death penalty:
The murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution. Defendant had been in the service station attended by victim. Victim took down Defendant’s tag number. Defendant suspi-cioned [sic] victim was going to call the law as soon as he left. Defendant felt if he killed the victim there would be nothing the victim could tell the police and he would not be apprehended.
Record, vol. 6, at 661. This allegation in the Bill and the court’s ensuing instruction on this aggravating circumstance were consistent with the single theory advanced by the prosecution throughout both the guilt phase and sentencing phase of Mr. Parks’ trial: that Robyn Parks had killed in the course of using a stolen credit card in order to avoid arrest for that crime. See, e.g., record, vol. 6, at 185-86, 631-32, 661, 697-700, 708; ct. ex. 1, record, vol. 5, at 2-3,12. This aggravating circumstance was the only one found by the jury to be applicable beyond a reasonable doubt in this case. The jury rejected as aggravating circumstances: (1) the murder was especially heinous, atrocious and cruel; and (2) there existed a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.
The trial court evidently found sufficient evidence in the record to support submitting the “avoiding lawful arrest” aggravating circumstance instruction. Yet, now the majority asserts that there was no evidence supporting the requested lesser offense instruction based on that same evidence. I cannot fathom how we can uphold the jury’s imposition of the death sentence based on the sole aggravating circumstance quoted above while at the same time rule that there was no record evidence supporting the requested lesser offense instruction. The same theory and evidence go toward both the aggravating circumstance instruction and the lesser offense instruction.
[Sjtates cannot fairly employ critical evidence to gain their own ends and, at the same time, deny its probative use to defendants. Nor can they fairly profess to doubt the sufficiency of evidence and then assert, in the same breath, that it can be found adequate to support imposition of the ultimate sanction.
Brief for Petitioner-Appellant at 22. As Justice Brennan once wrote, “The Government cannot have it both ways in the same case.” Kennedy v. Mendoza-Martinez, 372 U.S. 144, 195, 83 S.Ct. 554, 581, 9 L.Ed.2d 644 (1963) (Brennan, J., concurring).
Finally, the cases cited by the majority are not persuasive. In Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982), the defendant was released on parole and, according to his own testimony, embarked on a two month, cross-country crime spree, committing about thirty armed robberies, nine kidnappings, and two extor-tions in seven states. During a robbery of a pawnshop, the owner dropped to his hands and knees and crawled toward his office when the defendant shot him in the back, killing him. After capture, the defendant signed a written confession admitting everything. He testified before the grand jury and confessed “that [the victim] was not the only person he had ever killed, that he felt no remorse because of that murder, that he would kill again in similar circumstances, and that he intended to return to a life of crime if he was ever freed.” Id. at 607, 102 S.Ct. at 2050. He requested before the grand jury that he be executed as soon as possible.
Because Alabama law required a jury trial as a prerequisite for the imposition of the death penalty, the prosecutor rejected defendant’s guilty plea. Against his attorney’s advice, defendant testified during his subsequent trial, admitting everything as before the grand jury and stating, “I would rather die by electrocution than spend the rest of my life in the penitentiary. So, I’m asking very sincerely that you come back with a positive verdict for the State.” Id. at 607-08, 102 S.Ct. at 2050-51. The jury returned a guilty verdict in less than fif*1520teen minutes, and the defendant was sentenced to death.
Only after defendant’s mother initiated habeas proceedings did defendant change his attitude of desiring execution. The Alabama statute under which he was sentenced to death was the same that was shortly thereafter found unconstitutional in Beck v. Alabama because it absolutely precluded jury consideration of any lesser included offense in a capital case — even if warranted by the evidence. Mr. Hopper did not claim that there was record evidence supporting a lesser offense instruction and that he was therefore prejudiced. Rather, he asserted that because the statute was unconstitutional on its face, his conviction must be automatically set aside.
The Supreme Court ruled against Mr. Hopper, stating that Beck held only that “due process requires that a lesser included offense instruction be given when the evidence warrants such an instruction.” Id. at 611, 102 S.Ct. at 2053. The statute under which defendant was convicted required an intent to kill. The lesser offense that he asserted should have been considered by the jury applied only when a defendant lacked an intent to kill. The defendant’s testimony absolutely precluded a conclusion that the murder committed was unintentional as opposed to intentional, and there was no evidence from any other source conflicting with the defendant’s testimony and supporting a lesser offense instruction.
The unusual and particularly one-sided record in Hopper is distinguishable, as the rather elaborate recitation of the facts above indicates, from the present record. In this case, the defendant’s proffered testimony did not support the lesser offense instruction, but his testimony (taped telephone conversations) proffered by the state was sufficient evidence contradicting such testimony to warrant the instruction. Hopper was not decided on the basis that the defendant himself failed to come forward with evidence supporting a lesser offense instruction. It does not stand for the proposition that such evidence must come from the defendant. Rather, it stands for the proposition that when no evidence supports such an instruction, one need not be given just because the case is a capital case.
Spaziano v. Florida, 468 U.S. 447, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984), is equally inapposite. No lesser offense instruction was required in that case because as a matter of law there was no lesser offense on which to instruct. The statute of limitations had run on the lesser offense. The court did not rule that there was no factual basis in the record to support a lesser offense instruction.
IV.
The Supreme Court “has repeatedly said that under the Eighth Amendment ‘the qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination.’ ” Caldwell, 472 U.S. at 329, 105 S.Ct. at 2639 (quoting California v. Ramos, 463 U.S. 992, 998-99, 103 S.Ct. 3446, 3451-52, 77 L.Ed.2d 1171 (1983)). In my view, exacting scrutiny of the issues embraced in sections I and II of this dissent — issues which directly impacted upon the capital sentencing determination — require vacation of the death sentence in this case. Furthermore, due process requires that defendant’s conviction for first degree murder be reversed. On retrial, the evidence shows he is entitled to a lesser offense instruction for second degree murder.
This matter comes on for consideration of petitioner-appellant’s petition for rehearing and suggestion for rehearing en banc. The majority opinion and Judge McKay’s partial concurrence and partial dissent were filed on July 15,1987, and appeared in the advance sheet of 823 F.2d at 1405-29. The opinion was withdrawn from the bound volume pending the Court’s further order on petitioner-appellant’s petition for rehearing and suggestion for rehearing en banc.
The panel unanimously substitutes a revised “Section V” for the original “Section V” in the panel opinion filed July 15, 1987. With the original opinion thus modified, the panel majority votes to deny the petition for rehearing. Judges McWilliams and *1521Baldock vote to deny the petition for rehearing while Judge McKay voted to grant the petition for rehearing. Judge Bal-dock’s vote to deny the petition for rehearing is accompanied by his partial explanation which is attached to this order.
The suggestion for rehearing en banc has received the votes of a majority of the judges of the court in regular active service insofar as argument I contained in petitioner-appellant’s petition for rehearing. Petitioner-Appellant’s Petition for Rehearing with Suggestion for Rehearing En Banc at iv. On all other issues contained in the petition, the suggestion for rehearing en banc has failed to receive the votes of the majority of the judges of the court in regular active service. Briefs should be submitted concerning the following issues:
1. Whether the prosecutor’s summation in the penalty phase concerning juror responsibility diverted the jury from considering the full extent of its responsibility for determining the life or death sentence?
2. Whether the penalty phase instruction “You must avoid any influence of sympathy, sentiment, passion, prejudice or other arbitrary factor when imposing sentence,” influenced the jury to improperly discount mitigating evidence presented by the defendant?
3. Whether the combination of the prosecutor’s comments (“You leave the sympathy, and the sentiment and prejudice part out of it.”) concerning the above instruction and the instruction itself, and the absence of any corrective instruction after the arguments under Okla.Stat. Ann. tit. 22, § 831(6) (West 1986), influenced the jury to improperly discount mitigating evidence presented by the defendant?
The briefs shall be served and filed as follows:
1.Appellant’s opening brief shall be served and filed within 20 days of the date of this order.
2. Appellees’ answer brief shall be served and filed within 20 days of the date of service of Appellants’ brief.
3. Appellant may serve and file a reply brief within 10 days of the date of service of Appellees’ answer brief.
4. All briefs shall be filed and served in person or by an overnight delivery service. Fed.R.App.Proc. 26(c) shall not be applicable.
Oral argument shall be heard at the May 1988 Term of Court on Thursday, May 5, 1988.
. The majority also notes that "[t]here was no objection by defense counsel to the prosecution’s argument.” Maj. op. at 1504. In Dutton, there also was no objection at trial; in fact, the issue was not pursued at any time in the appellate process. The issue was raised for the first time in the habeas proceedings. However, the en banc court found cause for the procedural default because the trial occurred in 1979, six years prior to Caldwell in 1985. The court stated that counsel "could not have known that the prosecutor’s remarks might have raised constitutional questions.” Dutton, 812 F.2d at 596. Robyn Parks’ trial occurred in 1978, seven years before Caldwell and even a year before Dutton. Considering the en banc court’s treatment of this problem in Dutton, it seems disingenuous to me to apparently fault counsel in this case for not objecting at trial. At least he had the foresight, unlike counsel in Dutton, to pursue the issue on direct appeal.
. The challenged statements in Dutton were as follows:
First of all, [Defense Counsel] argues that the final decision is yours, and of course, to some degree it is. But you are, as I am, as Judge Theus is, as all the courts are, part of the process. We are not functioning as individuals. I am not here as Andy Coats. I am here as the District Attorney.
And you are not here in your individual capacities. You are here as the jury. And Judge Theus is not our good friend, Harold, off the Bench. He is his Honor, Judge Harold Theus, when he is in this Courtroom.
And we are all part of the law and it is the law that makes us work. So it has to be in that attitude, in that frame of mind, that you approach the problem.
Dutton, 812 F.2d at 596.
The challenged statements in Coleman were as follows:
In closing I say to you that they try to put the responsibility on you, like it’s all your fault. To a certain extent — I don’t mean to imply, I don't mean to imply that it’s put on you like it’s your fault if you do something in this case. I don’t mean to imply that necessarily, but let me make it real clear that you’re not writing the verdict in this case. Don’t— don't be mistaken into believing that it’s your responsibility that this happened, that you’re, you’re writing the verdict. I, I say to you, this man wrote the verdict on February 9th, and all those days after when he got out of jail and went on [sic] spree of knifing and kidnapping *1515and killing. He wrote the verdict. This man. He wrote it in blood over and over.
Coleman, 802 F.2d at 1240.
. Even the State in Brown acknowledged that sympathy for the defendant is an appropriate consideration in sentencing. It only argued, and the majority of the Court agreed, that the anti-sympathy instruction there given “simply prevented] the jury from relying on 'untethered sympathy1 unrelated to the circumstances of the offense or the defendant." Brown, 107 S.Ct. at 843 (Brennan, J., dissenting).
. Although Justice O’Connor concurred in the majority opinion, resulting in a 5-4 decision upholding the instruction, she also submitted a concurring opinion in which she voiced concern over the collective effect of the court’s instructions and the prosecutor's closing arguments. She was troubled that the prosecutor "may have suggested to the jury that it must ignore the mitigating evidence about the respondent’s background and character." Brown, 107 S.Ct. at 842 (O’Connor, J., concurring).
Along a similar vein, I am concerned that the prosecutor's admonitions that the jury must avoid all sympathy, in tandem with the court’s overreaching sympathy instruction, created a “‘legitimate basis for finding ambiguity concerning the factors actually considered by the’ jury.” Id. (citation omitted). In rebuttal to the defense’s arguments, the prosecutor stated:
His closing arguments are really a pitch to you for sympathy — sympathy, or sentiment or prejudice; and you told me in voir dire you wouldn’t do that.
Well, it’s just cold turkey. He either did it or he didn’t. He either deserves the death penalty or he doesn't, you know. You leave the sympathy, and the sentiment and prejudice part out of it.
Record, vol. 6, at 725-26. The prosecutor’s remarks buttress the court's over-inclusive sympathy instruction and, while not sufficient in themselves to warrant reversal, further undermine the reliability of the death sentence imposed in this case.
. Although not controlling in a federal constitutional analysis, Oklahoma state law is, in fact, very permissive in this regard. Under Oklahoma law, a defendant is entitled to instructions on every lesser offense that the evidence reasonably suggests. See McCullough v. State, 669 P.2d 311, 312 (Okla.Crim.App.1983). Oklahoma extends the right even where supporting evidence is "slight,” resolving all doubts in favor of the accused. See Dennis v. State, 561 P.2d 88, 94 (Okla.Crim.App.1977); Morgan v. State, 536 P.2d 952, 956 (Okla.Crim.App.1975).
The federal district court in this case relied in part on another Oklahoma case, Palmer v. State, 327 P.2d 722 (Okla.Crim.App.1958), in concluding that "in order to justify the instruction on second-degree murder, [the evidence] must 'raise the issue of whether the defendant was guilty of the lesser offense only.’” Maj. op. at 1500 (quoting district court). The majority opinion does not rely on the district court’s analysis in reaching the same result. However, because I reject the majority’s analysis, I must address the alternative analysis ostensibly supporting that result. While I could simply and easily rely on the assertion made above in the text that federal constitutional requirements override Oklahoma state law as interpreted by the district court, I feel compelled to refute this troublesome, and I believe erroneous, interpretation of Oklahoma law.
The defendant in Palmer was convicted of the felony of leaving the scene of an accident involving personal injury. He alleged error in the trial court’s failure to instruct on the misdemeanor of leaving the scene of "an accident resulting only in damage to a vehicle." Id. at 724 (quoting applicable Oklahoma statute) (emphasis added). The words defining the lesser offense required that there be no personal injury but only property damage in order for the statute to be violated. Because there clearly was record evidence that the accident at issue resulted in personal injury, there was no record evidence that the misdemeanor had been committed. The trial court’s refusal to instruct on the lesser offense was thus upheld on the well-accepted grounds that there must be some evidence in the record supporting the lesser offense in order to justify a lesser offense instruction. The word "only’ was significant in that case solely because the lesser offense statute employed it in defining the offense itself. Palmer is thus a unique case confined to its particular facts and to offenses that are similarly defined in restrictive terms.
In failing to recognize the uniqueness of the statutory definition of the lesser offense in Palmer, the district court imported the word "only” into every lesser offense definition. By so doing in this case, the district court in effect judicially engrafted a new element onto a second degree murder offense — that the greater intent of malice required for first degree murder be positively disproved. Absent evidence showing that "only’ the lesser offense was committed, no lesser offense instruction is necessary under the district court’s reasoning. If such were the rule, we would rarely ever see a lesser offense instruction, for if the evidence showed that only the lesser offense was committed, an instruction on the greater offense would be improper. Rarely could a case ever go to a jury on more than one theory. Suffice it to say that Oklahoma’s subscription to the "any-evidence test,” see Morgan, 536 P.2d at 956, belies such an *1518interpretation of Oklahoma law. Moreover, even if that interpretation of Oklahoma law were correct, such would clearly raise due process concerns under the United States Constitution.
. Section I of the majority opinion entitled "Lesser Included Offense" deals with this issue and we adhere to our original disposition of this issue.