¶1dissenting. Because I believe that the defendant was denied his Sixth Amendment right to the effective assistance of counsel due to counsel’s failure to voir dire the jury on racial issues, I respectfully dissent.
¶2I agree with the majority’s proposition that “ ‘[t]he conduct of voir dire by defense counsel does not have to take a particular form, nor do specific questions have to be asked,’ ” quoting State v. Evans (1992), 63 Ohio St.3d 231, 247, 586 N.E.2d 1042, 1056. Further, I agree, in general, with the proposition that the decision to voir dire on racial prejudice is a choice best left to a capital defendant’s counsel. See State v. Watson (1991), 61 Ohio St.3d 1, 13, 572 N.E.2d 97, 108, citing Turner v. Murray (1986), 476 U.S. 28, 37, 106 S.Ct. 1683, 1688, 90 L.Ed.2d 27, 37, and fn. 10. However, I believe that in situations where racial issues have the potential to permeate the entire trial, failure to voir dire the venire regarding racial issues can constitute ineffective assistance of counsel.
¶3The facts presented at trial demonstrate that racial issues did permeate this trial. The defendant, an African-American from the inner city, was accused of shooting a man of Arabic descent who operated a grocery in the inner city. When asked what defendant’s reasons were for shooting the victim, co-defendant Layson testified that after shooting the victim, the defendant told him, “[F]uck him, he in our neighborhood anyway. He shouldn’t be in our neighborhood with a store no way.”
¶4During mitigation, defense counsel elicited testimony from defendant’s wife, Grace Smith, about the film “Menace II Society,” a movie about a group of inner city young men (referring to themselves as “black gangsters”) who enter a neighborhood grocery store in the inner city and shoot the non-African-American clerks. Mrs. Smith, who had viewed the movie with her husband earlier on the day of the shooting, described the film as follows: “Well, it was two guys, you know, who thought they were kind of bad …. [Tjhey was just going to buy some beer and the guy, the owners of the store … were looking at them very strange like you shouldn’t belong in here because they were black. … [0]ne of the boys in the carryout and the store man … had a little words or discrepancy … and … caused a shooting ….”
¶5The parallels between the movie and the facts of this case lead to unavoidable conclusions about racial hatred with regard to the shooting of this Arabic grocery store clerk. Dr. Robert Kahl, a clinical psychologist who testified on behalf of defendant, opined that defendant was depressed and had a great deal of trouble *341talking about his feelings and that when confronted with situations that aroused intense feelings, he could get out of contact with reality. Dr. Kahl believed that defendant “has a defect in his ability to handle feelings and stress, and when he gets in situations where feelings are high and stress is high, that he becomes psychotic for a temporary period of time.” Regarding the movie “Menace II Society,” Dr. Kahl opined that “it cannot be coincidence. That this thing happened in the movie and this thing happened later. It cannot — I cannot believe it is coincidence.”
¶6Also during the mitigation phase of the trial, defense counsel elicited testimony regarding another film, “Malcolm X.” According to the testimony of an Islamic counselor at the Lucas County Jail, Jurry Taalib-Deen, “Malcolm X” highlights the Nation of Islam, an Islamic splinter group which, according to Taalib-Deen, preaches a “hatred doctrine of blacks being Gods and whites being devils.” In addition, Taalib-Deen testified that “Malcolm X” was “nationalistic,” and testified that “before [defendant] came in [to the Lucas County Jail], he was into nationalistic.”
¶7Throughout the trial and mitigation phase, the defendant, a follower of the Islamic faith, wore a prayer cap. Counsel attempted to make the jury aware that defendant no longer subscribed to the ideology of the Nation of Islam movement mentioned in the movie “Malcolm X,” but rather the peaceful tenets of the Islamic religion. It is possible that defense counsel’s tactic of eliciting this religious testimony was an attempt to evoke the sympathy of the jurors by showing that defendant’s religious conversion made him a gentler, more peaceful man today.
¶8Further, the evidence regarding the racial aspects of the films, combined with the psychological evidence from Dr. Kahl, could have been an attempt to demonstrate that defendant’s psychological defects permitted him to be influenced by the films, causing him to act in conformity with the violence depicted in the films.
¶9But I believe that issues of race and religion so infected this trial that the failure to voir dire the jury venire on those issues made counsel’s performance so deficient that counsel were not functioning as the counsel guaranteed by the Sixth Amendment, and that counsel’s errors prejudiced the defendant and deprived him of a trial whose result was reliable. Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693. If counsel consciously chose these tactics, they had a duty also to choose a jury free of prejudice so that such a tactic would not cause an unfavorable reaction.
¶10These topics, involving highly charged and controversial racial and religious issues, could evoke strong emotional reactions in a jury. Without a careful voir dire of the venire’s views and biases on these issues, there is no way to know *342whether the violent imagery of these two movies (and whether, in fact, any jurors had ever seen them) prejudiced the jury’s verdict. Some people believe, rightly or wrongly, that the tenets of the Nation of Islam urge militant violence, a powerful image that could have infected the jury’s deliberation. Without a careful rooting out of any potential juror who harbored prejudicial racial or religious views, or who had formed preconceived prejudices about either of the movies or the Islamic movement, there is no way to be sure that the jurors who deliberated were truly fair and impartial.
¶11“Because of the range of discretion entrusted to a jury in a capital sentencing hearing, there is a unique opportunity for racial prejudice to operate but remain undetected.” Turner, 476 U.S. at 35, 106 S.Ct. at 1687, 90 L.Ed.2d at 35. Further, the “risk of racial prejudice infecting a capital sentencing proceeding is especially serious in light of the complete finality of the death sentence.” Id. at 35, 106 S.Ct. at 1688, 90 L.Ed.2d at 36.
¶12The standard is whether “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. I believe that evidence of guilt was so overwhelming that the verdict of guilt would not have been affected. However, I cannot so find as to the sentence of death.
¶13No juror was questioned regarding his or her views on racial issues, ethnic issues, or the polities of the Nation of Islam, Muslims in general, or the Islamic religion itself. With the evidence of mitigation present in this case, I do not believe that we can find a reasonable probability that the emotional issues of race, both African-American and Arabic, suffused with religious overtones, did not affect the outcome of the sentencing phase of trial.
¶14Accordingly, I respectfully dissent and would reverse in part the judgment of the court of appeals and vacate the sentence of death.