dissenting:
I respectfully dissent. In my view, the solicitor’s argument to the jury constituted error for two reasons.
First, the solicitor argued the deterrent effect of capital punishment on crime when no evidence bn this issue was presented at trial. It is an elementary principle of law that solicitors must confine penalty phase summations to the trial record, its reasonable inferences and must focus on the defendant’s characteristics and nature of the crime. See State v. Cockerham, 294 S.C. 380, 365 S.E. (2d) 22 (1988); State v. Linder, 276 S.C. 304, 278 S.E. (2d) 335 (1981). This principle of law prevents solicitors from injecting arbitrary, extrinsic and prejudicial matters, which have no basis in evidence, into their closing arguments.
In State v. Gilbert, 277 S.C. 53, 283 S.E. (2d) 179 (1981), this Court determined that, as an evidentiary matter, the deterrent effect of capital punishment is not an appropriate consideration for a jury and is irrelevant to the question of *552punishment in a particular case. Specifically, we stated:
The propriety of the death sentence as a form of punishment is a matter addressed to the discretion of the legislature. The legislature has determined that capital punishment is an appropriate mode of punishment in this State. This Court will not sacrifice judicial resources in considering the philosophical correctness of capital punishment since it has been legislatively approved in a statutory complex we have previously examined and found to be constitutional.
Id., 283 S.E. (2d) at 181. See also State v. Thompson, 278 S.C. 1, 292 S.E. (2d) 581 (1982); State v. Plath, 277 S.C. 126, 284 S.E. (2d) 221 (1981); State v. Woomer, 278 S.C. 468, 299 S.E. (2d) 317 (1982). Additionally, the United States Supreme Court has noted that questions of the deterrent function of capital punishment are for the legislature and not for a jury’s consideration in a particular case. See Spaziano v. Florida, 468 U.S. 447, 104 S. Ct. 3154, 82 L. Ed. (2d) 340 (1984).
In State v. Patterson, 285 S.C. 5, 327 S.E. (2d) 650 (1984), this Court was confronted with the issue of determining if the trial court correctly refused to charge the jury not to speculate whether a life or death sentence would deter similar crimes. In upholding the trial judge, we stated: “[T]he sole function of the jury in a capital sentencing trial is the individualized selection of one or the other penalty, based upon circumstances of the crime and characteristics of the individual defendant.” Id. 327 S.E. (2d) at 654, citing State v. Plath, 281 S.C. 1, 313 S.E. (2d) 619 (1984).
Since evidence of the deterrent effect of capital punishment may not be introduced at trial, jury arguments which open the door for consideration of this issue are inappropriate because they inject an arbitrary and capricious factor into the jury’s deliberations.
The majority, by relying upon State v. Jones, 298 S.C. 118, 378 S.E. (2d) 594 (1989), and State v. Yates, 280 S.C. 29, 310 S.E. (2d) 805 (1982), fails to consider the longstanding principle that solicitors must confine penalty phase summations to the trial record and that in the present case, the solicitor’s argument clearly exceeded that record.
Second, in my opinion, the trial court erred when it allowed *553the solicitor to contrast appellant’s character with that of other accused persons awaiting trial because the argument referenced matters outside the record. The contrast of appellant’s character with that of other criminal defendants being prosecuted in Lancaster County is deleterious in that the solicitor offered his personal opinion — devoid of evidentiary basis — of appellant’s character.
A prosecutor cannot inject his personal beliefs or opinions into a case as though they were evidence because the resulting death sentence may not be free from the influence of any arbitrary factor as required by S.C. Code Ann. § 16-3-25(C)(1) (1976) and the Eighth Amendment of the United States Constitution. State v. Butler, 277 S.C. 543, 290 S.E. (2d) 420 (1982).
In State v. Butler, supra, the solicitor contrasted the merits of Butler’s prosecution with those of other cases he had prosecuted in the previous eight years. This Court reversed Butler’s conviction and sentence by holding that “the relative merits of this prosecution as compared to all other cases over the previous eight-and-a-half years were all matters which were not within the record and its reasonable inferences.” Id. 290 S.E. (2d) at 422, citing State v. Linder, supra. In short, the contrast constituted argument outside the record and created an arbitrary factor. Id.
The majority distinguishes this case from Butler by concluding that the solicitor’s comments do not compare the relative merits of the present prosecution with others. The majority, however, fails to recognize that this Court, in Butler, also based its determination on the fact that the matters “were not within the record and its reasonable inferences.” Similarly, in the present case, the solicitor’s comments constituted conjecture and prejudicial matters not within the record and its reasonable inferences. Thus, as in Butler, the comments constitute reversible error.
For the foregoing reasons, it is my opinion that appellant was denied his right to a fair trial. I would vacate appellant’s death sentence and remand this case for a new sentencing proceeding.