dissenting:
I am compelled to dissent on the basis of appellant’s first assignment of error, wherein he argues that the first stage of his capital trial was so infected with prejudicial factors that he was deprived of a fair and impartial trial. First, appellant complains that his ex-wife, Mindy Cummings, was permitted to testify to irrelevant and highly prejudicial matters in the guilt-innocence stage concerning appellant’s alleged conditions of reconciliation. In response to the prosecutor’s questioning, Ms. Cummings testified that appellant’s conditions were that he:
be allowed to drink, use drugs, use pot, fool around with other women, so long as he didn’t bring it home ... that he was not acquainted with the Lord; that he not be bothered with any mention of the Lord at all in his home.
I agree with appellant that such testimony was irrelevant and should not have been admitted. See 12 O.S.1981, §§ 2401, 2402. Such testimony falls within the category of inadmissible evidence of “other crimes or acts” under 12 O.S.1981, § 2404(B), and was undoubtedly highly prejudicial. See Lewis v. State, 651 P.2d 1344, 1346 (Okla.Crim.App.1982); Turner v. State, 629 P.2d 1263, 1265 (Okla.Crim.App.1981).
When an accused is put on trial, he is to be convicted, if at all, by relevant evidence that shows him guilty of the offense charged, and evidence concerning unrelated crimes must be excluded. See Wilkett v. State, 674 P.2d 573, 576 (Okla.Crim.App.1984). Whatever probative value, if any, possessed by the references to drug usage and illicit sexual activity was clearly outweighed by the danger of unfair prejudice. See 12 O.S.1981, § 2403. At the time such testimony was offered, the prosecutor failed to state an exception making such evidence admissible. See Burks v. State, 594 P.2d 771, 774 (Okla.Crim.App.1979). As correctly noted by the majority, however, the error was not preserved at trial with a timely specific objection as required by 12 O.S.1981, § 2104(A)(1). Therefore, the issue becomes whether this error arises to the level of fundamental or plain error affecting substantial rights of the defendant. See Tobler v. State, 688 P.2d 350, 353 (Okla.Crim.App.1984); 12 O.S.1981, § 2104(D). An accused has a fundamental right, regardless of his guilt or innocence or position in society, to a fair and impartial trial before an impartial jury free from unfair prejudice. Okla. Const. art. II, § 20; Tobler, supra. The possibility of prejudice was increased here, because of the trial court’s failure to issue a cautionary admonishment to the jury at the time the other crime evidence was received, as required by Burks v. State, supra, at 775. In addition, the prosecutor’s questioning of Ms. Cummings concerning the appellant's refusal to accept her religious beliefs was likewise irrelevant, and could only be designed to prejudice the jury against the appellant. Clearly, it is improper to directly, or indirectly, impair or enhance the credibility of a witness by questions concerning religious beliefs. See 12 O.S.1981, § 2610.
If this had been the only error which occurred during the guilt-innocence stage of trial, I would be hard-pressed to find reversible error on this issue alone, in light of the failure to object and the strong *371circumstantial evidence of guilt. In reviewing appellant’s other contentions, however, I am persuaded that the cumulative effect of the errors rises to the level of fundamental or plain error adversely affecting the fundamental fairness and impartiality of the proceedings. See Tobler, supra; Cobbs v. State, 629 P.2d 368, 369 (Okla.Crim.App.1981); 12 O.S.1981, § 2104(D).
For example, the prosecutor used leading questions to prompt Ms. Cummings to testify that sexual intercourse with appellant was “rough” and “violent in nature.” Over the objection of defense counsel, the prosecutor was allowed to question Teresa Spake concerning whether she had sexual relations with appellant in July of 1984. Ms. Spake testified that she was eighteen years old, that she had sexual relations with appellant, that he never used a condom, and that appellant asked her to shave her pubic hair because, according to appellant, “he started his sex life young....” (Tr. 382-83) Defense counsel’s request for a mistrial was overruled. On redirect examination, the prosecutor further exploited the situation by asking Ms. Spake whether appellant told her “that he preferred the pubic area to be bare?” and how many times such a request was made. The State also called Ladona Brodderick who testified, over objection, that she had sexual relations with appellant and that he never used a condom. Again, whatever probative value, if any, existed in such testimony was clearly outweighed by the danger of unfair prejudice and thus, should have been excluded. See 12 O.S.1981, § 2403. See Stowe v. State, 590 P.2d 679, 682 (Okla.Crim.App.1979).
My conclusion that a reversal is warranted is further supported by the presence of prosecutorial misconduct by District Attorney Steve Suttle during first stage closing argument. Mr. Suttle repeatedly accused defense counsel of creating a “smoke screen” to mislead the jury:
BY MR. SUTTLE: Ladies and gentlemen ... in the practice of law ... a good tactic is to develop a smoke screen. Let’s not try the defendant ... Let’s try the OSBI. Let’s ridicule the county sheriff. Let’s talk about the ... Police Department. Let’s accuse the District Attorney of making faces during argument. Let’s come along here and let’s set a whole bunch of little fires and let’s make a big smoke screen. And in this case, you would almost literally have to put up a smoke screen so you people couldn’t see this ... [cup with fingerprints] ... They would have to set a major prairie fire, not just a smoke screen ... a major prairie fire across here to keep you from seeing all this....
(Tr. III 892) Such comments amounted to an improper expression of the prosecutor’s “personal belief or opinion as to the truth or falsity of any testimony,” are “calculated to inflame the passions or prejudices of the jury,” and “divert the jury from its duty to decide the case on the evidence, by injecting issues broader than the guilt or innocence of the accused....” ABA Standards for Criminal Justice, The Prosecution Function, §§ 3-5.8(b)(c) & (d) (1980). See Bechtel v. State, 738 P.2d 559, 561-62 (Okla.Crim.App.1987) (Parks, J., Specially Concurring).
During Mrs. Perry’s closing argument on behalf of appellant, co-counsel Mr. Perry approached the bench and objected “to Mr. Suttle making faces at my co-counsel while she’s making argument.” The trial judge admonished Mr. Suttle to “avoid” such conduct. On the record, Mr. Suttle stated “I object to Mr. Perry making a big deal about it, too ... I smiled at the sheriff.” (Tr. Ill 869) Such discourteous, disrespectful, and disgraceful conduct on the part of District Attorney Suttle is degrading to our system of justice and is totally inexcusable. Such behavior is in derogation of the Oklahoma Code of Professional Responsibility, DR 7-106(C)(6), which provides that an attorney shall not engage “in undignified or discourteous conduct which is degrading to a tribunal.” 5 O.S.1981, Ch. 1, App. 3. An attorney has a duty to “maintain, while in the presence of the courts of justice, or in the presence of judicial officers ... the respect due to the said courts and judicial officers.” 5 O.S.1981, § 3(1). A prosecutor “should support the authority of the *372court and the dignity of the trial courtroom by strict adherence to the rules of decorum and by manifesting an attitude of professional respect toward the judge, opposing counsel, witnesses, defendants, jurors, and others in the courtroom.” ABA Standards for Criminal Justice, The Prosecution Function, § 3-5.2(a) (1980). “It is unprofessional conduct for a prosecutor to engage in behavior or tactics calculated to irritate or annoy the court or opposing counsel.” Id. at § 3-5.2(c).
In his final closing argument during the first stage, Mr. Suttle went outside the record and made arguments designed solely to inflame the passions and prejudices of the jury:
There has not been ... a more horrible crime committed in this county ... or ... Oklahoma ... And when you find the defendant guilty of murder and when you find the defendant guilty of kidnapping and when you find the defendant guilty of rape, those of us who, in our own small way, who never knew this child, but have lived it, can bury this child ... And at this stage of trial when you find the defendant guilty of rape and kidnapping, we ask you to assess against him the penalty of 1000 years in prison on each of those two counts.
While the crime in the instant case was especially brutal and senseless, this Court cannot tolerate arguments calculated solely to inflame the passions and prejudices of the jury. See Ward v. State, 633 P.2d 757, 760 (Okla.Crim.App.1981); ABA Standards, supra, § 3-5.8(c).
Based on the foregoing, I am compelled to agree with Judge Bussey’s assessment under similar circumstances where, writing for the majority, he concluded that “[u]nfortunately, the appellant’s right to a fair trial was the victim of an overzealous prosecutor.” Brewer v. State, 650 P.2d 54, 57 (Okla.Crim.App.1982), cert. denied, 459 U.S. 1150, 103 S.Ct. 794, 74 L.Ed.2d 999 (1983). Accordingly, I dissent.