concurring specially.
I fully concur with all that is said by the majority, except for its reasoning in Division 9.
Because Whatley failed to object to any portion of the State’s closing argument in the guilt-innocence phase, I conclude that he has waived his right to assert error on appeal as to that phase of the trial. See Miller v. State, 267 Ga. 92 (2) (475 SE2d 610) (1996) (failure to timely object to improper closing argument precludes review of the argument on appeal). But, with regard to possible error in the state’s closing argument that may affect the death sentence, a different standard applies: when no timely objection is interposed, the test for reversible error is if “ ‘there was a reasonable probability that the improper arguments changed the jury’s exercise of discretion in choosing between life imprisonment or death.’ ” Hicks v. State, 256 Ga. 715, 730 (23) (352 SE2d 762) (1987), quoting Ford v. State, 255 Ga. 81, 94 (8) (I) (2) (335 SE2d 567) (1985). The “reasonable probability” standard is used by this Court to evaluate improper closing argument that was not objected to at trial because we have a duty under OCGA § 17-10-35 (c) (1) to ensure that a sentence of death is not imposed under the influence of passion, prejudice, or any other arbitrary factor. See Hicks, supra; Spivey v. State, 253 Ga. 187, 191 (4) (319 SE2d 420) (1984). Therefore, I find that the “reasonable probability” standard only applies to the effect an uncontested improper argument may have had on a resulting death sentence. See id. Thus, I must conclude that our previous death penalty cases which used the incorrect standard in the guilt-innocence phase were decided incorrectly to the extent that they utilized the “reasonable *305probability” standard, instead of waiver, to evaluate uncontested closing argument as it affects a defendant’s convictions. See, e.g., Mize v. State, 269 Ga. 646, 653 (8) (501 SE2d 219) (1998); Barnes v. State, 269 Ga. 345, 356 (23) (496 SE2d 674) (1998); Sears v. State, 268 Ga. 759, 765 (15) (493 SE2d 180) (1997); Bishop v. State, 268 Ga. 286, 294 (14) (486 SE2d 887) (1997); Carr v. State, 267 Ga. 547, 555 (7) (480 SE2d 583) (1997); Bright v. State, 265 Ga. 265, 285 (19) (455 SE2d 37) (1995); Hittson v. State, 264 Ga. 682, 689 (13) (449 SE2d 586) (1994); Todd v. State, 261 Ga. 766, 767 (2) (a) (410 SE2d 725) (1991).
Decided December 4, 1998. Johnny B. Mostiler, for appellant. William T. McBroom III, District Attorney, Daniel A. Hiatt, Assistant District Attorney, Thurbert E. Baker, Attorney General, Christopher L. Phillips, Assistant Attorney General, Shepherd & Johnson, Richard A. Vandever, for appellee.Applying the “reasonable probability” standard in this case to the effect that the state’s guilt-innocence phase closing argument may have had on Whatley’s death sentence, I would find no error sufficient to overcome Whatley’s procedural default.
I am authorized to state that Justice Hunstein and Justice Carley join in this special concurrence.
Appendix.
Bishop v. State, 268 Ga. 286 (486 SE2d 887) (1997); Jones v. State, 267 Ga. 592 (481 SE2d 821) (1997); Carr v. State, 267 Ga. 547 (480 SE2d 583) (1997); McClain v. State, 267 Ga. 378 (477 SE2d 814) (1996); Crowe v. State, 265 Ga. 582 (458 SE2d 799) (1995); Mobley v. State, 265 Ga. 292 (455 SE2d 61) (1995); Christenson v. State, 262 Ga. 638 (423 SE2d 252) (1992); Meders v. State, 261 Ga. 806 (411 SE2d 491) (1992); Ferrell v. State, 261 Ga. 115 (401 SE2d 741) (1991); Stripling v. State, 261 Ga. 1 (401 SE2d 500) (1991); Isaacs v. State, 259 Ga. 717 (386 SE2d 316) (1989); Romine v. State, 256 Ga. 521 (350 SE2d 446) (1986); Cargill v. State, 255 Ga. 616 (340 SE2d 891) (1986); Ingram v. State, 253 Ga. 622 (323 SE2d 801) (1984).