dissenting. Every murder is a tragic act; this one is no different. However, not every murderer warrants death. The constitutional purpose of statutory aggravating circumstances is to narrow the class of murderers to those deserving society’s ultimate punishment, the death penalty. Zant v. Stephens (1983), 462 U.S. 862, 877, 103 S.Ct. 2733, 2743, 77 L.Ed.2d 235, 249-250. See Rosen, Felony Murder and the Eighth Amendment Jurisprudence of Death (1990), 31 B.C.L.Rev. 1103, 1121. At its core, this case is a murder case and it probably should have been prosecuted as a noncapital case.
Having reviewed and independently weighed all the facts and other evidence disclosed in the record and having considered the offense and the offender as required by R.C. 2929.05(A), I believe that the aggravating circumstance O’Neal *422was found guilty of committing does not outweigh the mitigating factors beyond a reasonable doubt. Accordingly, I believe the sentence of death is not appropriate and dissent.
APPENDIX
“Proposition of Law No. I: A person does not lose all possessory interest in the marital residence, nor the right to legally enter that residence, because he has temporarily left the residence as a result of a marital argument.
“Proposition of Law No. II: Trespass is an essential element of aggravated burglary, and where defendant enters the marital residence, prior to the issuance of any court order restricting him from doing so, he does not commit a trespass or a burglary.
“Proposition of Law No. Ill: The state’s use of peremptories to excuse three Afro-American jurors, without articulating inadequate [sic ] non-discriminatory reason [sic] for their dismissal, combined with the acknowledged fact that defendant is a member of a cognizable racial group, violates defendant’s right to equal protection under the United States and Ohio Constitutions.
“Proposition of Law No. IV: Admission of multiple hearsay statements allegedly made by the victim denies defendant the right to confront the witnesses against him, and to due process of law, where the admitted statements do not fall into any recognized hearsay exception.
“Proposition of Law No. V: When the jury, on the basis of the evidence presented, could reasonably find for the state on all elements of aggravated murder except prior calculation and design, or commission of an underlying felony, the trial court must charge on the lesser included offense of murder if a timely request for such a charge is made.
“Proposition of Law No. VI: Admission in evidence of statements elicited from defendant while in custody, which are obtained by deception, and are thus not the product of a knowing and intelligent waiver, violates the Fifth and Sixth Amendments to the United States Constitution and parallel constitutional and statutory provisions in the state of Ohio.
“Proposition of Law No. VII: Ohio’s death penalty statute mandates that the nature and circumstances of the offense can only be considered as mitigating factors; thus, their consideration as aggravating factors, as well as appeals to emotion, violates this statute and defendant’s right to be free from arbitrary infliction of the death penalty as guaranteed by the Eighth Amendment to the United States Constitution, and parallel state provisions.
“Proposition of Law No. VIII: Although multiple charges of aggravated murder may be submitted to the jury during the guilt phase of trial, where there *423is only one death charge there can be only one conviction, and presentation to the jury of multiple counts, with multiple specifications, followed by imposition of multiple death sentences, violates defendant’s right to be free from cruel and unusual punishment under the state and federal Constitutions.
“Proposition of Law No. IX: The alternative provisions of O.R.C. § 2929.04(A)(7) are mutually exclusive and, where one is presented to the jury as an aggravating circumstance, inclusion of the other undermines the required reliability of the jury’s determination, in violation of the Eighth Amendment to the United States Constitution and by parallel state constitutional provisions.
“Proposition of Law No. X: The Sixth Amendment to the United States Constitution, and the parallel provision in Ohio’s Constitution, require that juries be a cross-section of the jurisdiction where a defendant is tried, and systematic exclusion of prospective jurors opposed to the death penalty violated defendant’s right to a fair and impartial jury which reflects the community from which it is drawn, as guaranteed by the state and federal Constitutions.
“Proposition of Law No. XI: An instruction to the jury at the penalty phase of trial that it could not be governed by considerations of sympathy, improperly restricts consideration of legitimate mitigating factors, in violation of the prohibition against cruel and unusual punishment embodied in the state and federal Constitutions.
“Proposition of Law No. XII: Imposition of the death penalty without proof beyond a reasonable doubt of all statutory aggravating circumstances violated defendant’s rights under the Eighth Amendment and the Due Process and Equal Protection Clauses of the Fourteenth Amendment, and corresponding provisions of the Ohio Constitution.
“Proposition of Law No. XIII: Use of the same operative fact to first elevate ordinary murder to aggravated murder and then to capital, death eligible, aggravated murder violates defendant’s protection against cruel and unusual punishment as secured to him by the Eighth Amendment, and the right to due process and equal protection of law under the Fourteenth Amendment and corresponding provisions of the Ohio Constitution.
“Proposition of Law No. XIV: Imposition of the sentence of death on defendant violates his rights under the Eighth Amendment and the Due Process and Equal Protection Clauses of the Fourteenth Amendment of the federal Constitution, and his right to due course of law and punishment not cruel and unusual under the Ohio Constitution.
“Proposition of Law No. XV: Defendant’s sentence violates the Eighth and Fourteenth Amendments to the Constitution of the United States, and parallel state provisions, because it is disproportionately severe in relation to the crime *424committed, and to sentences visited upon others for the same crime in the same and other jurisdictions.
“Proposition of Law No. XVI: Defendant’s death sentence must be set aside because it is disproportionately severe when compared to other cases in Hamilton County and in the state of Ohio in which capital sentencing decisions were made.
“Proposition of Law No. XVII: The combined effect of errors in evidentiary rulings, and rulings on pretrial motions denied defendant a fair and impartial disposition of his case, and made imposition of the death penalty arbitrary, all in violation of defendant’s rights under the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitutions [sic ], and parallel state provisions.”