dissenting.
Fleming contends that the trial court erred in ruling that the prosecutor may argue, without supporting evidence, that sentencing Fleming to death will deter others from crime, but that Fleming may not counter this argument with expert testimony that the death penalty is ineffective as a deterrent. I agree with Fleming that due process requires that he be permitted to present evidence to rebut the state’s argument, and, therefore, I dissent.
Last year in Simmons v. South Carolina,12 the United States Supreme Court held that a state may not urge the jury to impose the death penalty by arguing that the defendant presents a future danger without also informing the jury that the defendant is ineligible for parole. The basis for the Court’s ruling was that due process does not allow execution of a defendant “on the basis of information which he had no opportunity to deny or explain.”13 In light of Simmons, allowing prosecutors to argue that the death penalty deters crime,14 but at the same time refusing to allow a defendant to introduce expert evidence to the contrary15 also violates the due process guarantee. Prohibiting a defendant from introducing evidence relating to the de*547terrent effect of the death penalty deprives the defendant of an adequate “opportunity to deny or explain” the prosecutor’s argument that executing this defendant will deter others from killing in the future.16 The practical reality is that the prosecutor’s argument will exploit jurors’ beliefs about the effectiveness of the death penalty as a deterrent. Thus, under Simmons, the defendant must be afforded the opportunity to present evidence to rebut the argument used against him.
Decided June 30, 1995. Jackson & Schiavone, G. Terry Jackson, Ray C. Smith, for appellant. Dupont K. Cheney, District Attorney, J. Thomas Durden, Assistant District Attorney, Michael J. Bowers, Attorney General, Susan V. Boleyn, Mary Beth, Westmoreland, Senior Assistant Attorneys General, for appellee. Cathy M. Alterman, Nicholas A. Lotito, amici curiae.Not only did the trial court err in refusing to allow the defendant to present evidence to rebut the prosecutor’s argument, but the court should not have allowed the prosecutor to present unsubstantiated argument about the deterrent effect of the death penalty in the first place. The United States Supreme Court has held that while retribution is a legitimate purpose of the death penalty and may be expressed by society’s moral outrage, the value of capital punishment as a deterrent depends on statistical, empirical studies, the results of which can be evaluated. Gregg v. Georgia, 428 U. S. 153, 183-186 (96 SC 2909, 49 LE2d 859) (1976). Allowing mere argument by the state with no statistics or other empirical support flies in the face of Gregg’s unequivocal pronouncement that the deterrent effect of the death penalty depends on such evidence.
I am authorized to state that Presiding Justice Benham and Justice Fletcher join in this dissent.
_U. S. _ (114 SC 2187, 129 LE2d 133, 147) (1994).
114 SC at 2192 (quoting Gardner v. Florida, 430 U. S. 349, 362 (97 SC 1197, 51 LE2d 393) (1977)). See also Skipper v. South Carolina, 476 U. S. 1, 5, n. 1 (106 SC 1669, 90 LE2d 1) (1986) (elemental due process requires admission of the defendant’s relevant evidence to rebut prosecutor’s argument on future dangerousness).
See, e.g., Walker v. State, 254 Ga. 149, 159-160 (327 SE2d 475), cert. denied, 474 U. S. 865 (106 SC 185, 88 LE2d 154) (1985); Horton v. State, 249 Ga. 871, 876 (295 SE2d 281) (1982), cert. denied, 459 U. S. 1188 (103 SC 837, 74 LE2d 1030) (1983).
Our previous cases that excluded expert evidence on the deterrent effect of the death penalty did not address the due process concerns raised when the evidence is offered to rebut an argument by the state. See Stevens v. State, 247 Ga. 698, 709 (278 SE2d 398) (1981), cert. denied, 463 U. S. 1213 (103 SC 3549, 77 LE2d 1396) (1983); Felker v. State, 252 Ga. 351, 382 (314 SE2d 621), cert. denied, 469 U. S. 873 (105 SC 223, 83 LE2d 153) (1984). We now overrule those decisions.
Compare Horton v. State, 249 Ga., supra at 873 (defendant could not describe the mechanics of electrocution in closing argument because the facts were not in evidence).