concurring in part and dissenting in part:
I concur in the majority opinion except with respect to Part II.A and Part II.D. Specifically, I do not agree with the majority’s rejection of Moore’s claim that the testimony of the victim’s father, coupled with the prosecutor’s closing argument, rendered the death sentence unconstitutional, and his claim that prosecutorial misconduct rendered the penalty trial fundamentally unfair.
EVIDENCE OF NONSTATUTORY AGGRAVATING FACTORS
Zant v. Stephens, - U.S. -, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983), establishes *651the proposition that having found at least one statutory aggravating circumstance making the defendant eligible for the death penalty, the sentencer is not barred by the Constitution from considering other possible aggravating circumstances in the process of deciding whether that defendant will actually receive the death penalty. See id. at 2743. Hence, the admission of evidence of a nonstatutory aggravating circumstance ordinarily will not give rise to an error of constitutional magnitude. Stephens and the Court’s earlier opinions, however, make it clear that not all evidence pertaining to mitigation or aggravation may be admitted without constitutional error. In Stephens, the Court recognized that an aggravating factor, and evidence thereof, may be rejected as “constitutionally impermissible or totally irrelevant to the sentencing process.” Id. at 2747. And in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), the plurality noted that restrictions on the evidence that can be offered at a sentencing hearing are unnecessary only “[s]o long as the evidence introduced and the arguments made at the presentence hearing do not prejudice a defendant.” Id. at 203-04, 96 S.Ct. at 2939.
Having reviewed the evidence introduced and the arguments made at Moore’s sentencing hearing, I conclude that the testimony of the victim’s father presented the jury with a constitutionally unacceptable criterion for imposing the death penalty, i.e., the victim’s value to society and to her family. In so concluding, I place particular emphasis on the references to the victim’s qualities and the comparisons between the victim and the defendant in the prosecutor’s final argument. In short, the testimony of the victim’s father, with the prosecutor’s comments, served not merely to let the jury know who the victim was, but rather to urge the jury to return a sentence of death because of who the victim was. To the extent that sentencer consideration of the victim’s positive attributes promotes arbitrariness without enhancing individualization in the imposition of the death penalty, I would vacate Moore’s death sentence and remand for resentencing.
This is not to say that I would object to the revelation of the victim’s attributes, within limits, at the guilt/innocence phase of a capital trial, or even at the sentencing phase where there is some independent source of relevance. In this case, however, I can discern no independent source of relevance for such evidence. First, I cannot accept the rationale put forth by the Georgia Supreme Court in Moore v. State, 240 Ga. 807, 243 S.E.2d 1, cert. denied, 439 U.S. 903, 99 S.Ct. 268, 58 L.Ed.2d 249 (1978), and adopted in the majority opinion. It is true that the victim’s good character would be relevant in a case in which the defendant asserts the victim’s complicity as a defense to the robbery charge at the guilt/innocence phase or as a mitigating circumstance at the sentencing phase. But because this is not such a case, the admirable characteristics of the victim are not “material to resolving a genuine issue in the case,” and thus “testimony regarding these characteristics must be excluded.” That the trial judge was “sensitive to the problem” and did not permit a more egregious display does not alter the fact that the testimony allowed was constitutionally impermissible.
The testimony of the victim’s father and the prosecutor’s remarks thereon confirm that the evidence was offered for the constitutionally unacceptable purpose of demonstrating, as aggravating circumstances, the victim’s worth as a member of society and of her family, the relative social value of the victim and the defendant, and/or the sympathy due the victim and her family.1 As the prosecutor stated when calling the witness, “we call Mr. Joseph Allen, who is the father of the victim, as a witness to show aggravating circumstances.” Over defense counsel’s repeated objections, Mr. Allen testified that his daughter, Teresa, would have been 19 had she lived, that she *652was an honor high school graduate, that she was awarded a scholarship to college, that she was employed while in school in order to help pay for her education, and that she aspired to be a nurse.
In his closing argument at the sentencing phase, the prosecutor made a number of comments underscoring the victim’s favorable traits and calling for a comparison between the victim and the defendant. Of particular importance is the following:
Now, when you talk about useless killings, and I think this killing was absolutely useless, there is absolutely no mitigation, no mitigating circumstances whatsoever. . . . There was absolutely no reason in the world for this young girl to have been killed, and I think if you’re going to discuss sympathy for Carzell Moore, then you ought to certainly think about what Mr. Allen said about the girl having been an honor graduate in high school, helping her parents by working, trying to earn a living and get a decent education, better herself, help her folks and here her life is ended at age eighteen, by someone who displays no more emotion and no more feeling, than to come in here to Court and just absolutely deny one hundred percent something that you, Lady and Gentlemen, know that he did and know full well that he did.
Earlier the prosecutor had told the jury:
Now, on the other hand, you’ve got the Allens. The family is here, all of them. You've seen them in Court, the Courtroom has been full of them. They’ve come up here in the interest of their loved one just like Mrs. Moore comes in the interest of her loved one. So, the reason for putting up Mr. Allen, I wanted you to find out something about Teresa just as Carzell related something about himself.
These remarks leave no doubt that the testimony of the victim’s father was intended to provide additional evidence in aggravation to counter Moore’s mitigating evidence. The testimony, together with the closing argument, constituted a not-so-subtle invitation to the jury to sentence Moore to death on the basis of his victim’s social worth.
Turning to the abstract, and more fundamental, issue whether use of the victim’s virtues as an aggravating circumstance in a death sentencing proceeding violates the Constitution, I start with the majority’s observations that “[a]ny exploration into the character of the victim [is] fraught with constitutional danger,” and that “[t]he concern for avoiding arbitrariness naturally implies that imposing a death sentence on the basis of the peculiar characteristics of persons involved — such as race, religion, class, or wealth — is forbidden.” I submit that the social value of the victim is precisely the sort of “peculiar characteristic” which, if emphasized, poses an intolerable risk of arbitrariness in the sentencing determination.
Although this appears to be an issue of first impression, my conclusion logically follows from the Supreme Court’s accommodation of the sometimes conflicting constitutional interests in avoiding arbitrariness and promoting individualization in capital sentencing. In response to the assertion that sentencer consideration of nonstatuto-ry aggravating factors leads to arbitrariness, the Court in Stephens noted that while statutory guidelines serve to channel sentencer discretion, consideration of other factors helps ensure “an individualized determination on the basis of the character of the individual and the circumstances of the crime.” 103 S.Ct. at 2744 (emphasis in original). Put differently, the enhanced individualization resulting from consideration of nonstatutory factors is viewed as offsetting the constitutional dangers posed by the greater discretion and concomitant risk of arbitrariness. Accordingly, in order for evidence of a given nonstatutory aggravating factor — such as the victim’s social value — to be constitutionally admissible, it must further, or at least have the potential to further, an individualized determination “on the basis of the character of the individual and the circumstances of the crime.”2 lie-*653cause evidence of the victim’s social worth directly relates to neither category,3 its admission at the sentencing phase of a capital trial is unconstitutional.4
PROSECUTOR’S CLOSING ARGUMENT
In concluding that the prosecutor’s final remarks at the sentencing proceeding did not render the trial fundamentally unfair, the majority ignores two improper lines of argument which pervade the prosecutor’s summation. First, the majority makes no mention of the prosecutor’s portrayal of the victim as a valuable member of society and of her family. The impropriety of this conduct is evident from the preceding discussion. Second, the majority erroneously concludes that “[t]he record contains no support for petitioner’s assertion that the prosecutor sought to inflame the jury against all persons who commit homicide.” In fact, the transcript reveals that despite the trial judge’s admonition to restrict his comments to the particular case, the prosecutor repeatedly referred to the general deterrence function of capital punishment, tacitly urging the jury to help reduce the incidence of violent crime by imposing the death penalty in this case. Insofar as such comments introduce a factor wholely unrelated to “the character of the individual and the circumstances of the crime,” Stephens, 103 S.Ct. at 2744, they are improper.
In short, several of the prosecutor’s closing comments were plainly improper and highly prejudicial. In my judgment, “the prosecutor’s actions were so egregious as to render the trial fundamentally unfair.” Hance v. Zant, 696 F.2d 940, 951 (11th Cir.), cert. denied, - U.S. -, 103 S.Ct. 3544, 77 L.Ed.2d 1393 (1983).
In light of the constitutional invalidity of the victim’s value aggravating circumstance and its use in this case, and given the impropriety of the prosecutor’s closing argument, I would vacate the death sentence and remand for resentencing,
ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC
Before GODBOLD, Chief Judge, RO-NEY, TJOFLAT, HILL, FAY, VANCE, KRAVITCH, JOHNSON, HENDERSON, HATCHETT, ANDERSON and CLARK, Circuit Judges. BY THE COURT:A member of this Court in active service having requested a poll on the application for rehearing en banc and a majority of the judges in this Court in active service having voted in favor of granting a rehearing en banc,
IT IS ORDERED that the cause shall be reheard by this Court en banc with oral argument on a date hereafter to be fixed. The Clerk will specify a briefing schedule for the filing of en banc briefs.
. The evidence at issue may not be fairly characterized as properly rebutting the mitigating evidence offered by the defendant in his bid for jury sympathy. For the victim’s qualities have nothing to do with whether the circumstances of the defendant’s life militate in favor of leniency. Rather, they provide an independent, albeit invalid, basis for the harsher sentence.
. This analysis would not invalidate the aggravating circumstance of killing a policeman since that circumstance focuses less on the qualities of the individual victim and more on the nature of the offense, i.e., interference with law enforcement. Indeed, the statutes of the *653states in this circuit either omit any reference to police officers or specify that the victim must have been “engaged in the performance of his official duties.” Ga.Code § 17-10-30(b)(8) (1982).
. It would, of course, be pure sophistry to argue that the positive attributes of the victim are subsumed under the expression “circumstances of the crime.”
. My resolve in this regard is confirmed by the spectre of a statute listing as an aggravating circumstance “that the victim of the murder was a valuable member of society and of her family” or anything to like effect. Similarly, even though the standards are more permissive in connection with mitigating evidence, it is difficult to imagine a defendant’s being allowed to argue the victim’s worthlessness in mitigation.