dissenting.
{¶ 111} As I have stated before, “the constitutional purpose of statutory aggravating circumstances is to narrow the class of murderers to those deserving society’s ultimate punishment, the death penalty.” State v. O'Neal (2000), 87 *51Ohio St.3d 402, 421, 721 N.E.2d 73 (Pfeifer, J., dissenting), citing Zant v. Stephens (1983), 462 U.S. 862, 877, 103 S.Ct. 2733, 77 L.Ed.2d 235. This court’s broad interpretation of the course-of-conduct death specification in this case calls into question whether under that interpretation that death specification fulfills its constitutional purpose of narrowing the class of murderers deserving the death penalty.
{¶ 112} The trial court’s decision to permit the jury to consider the course-of-conduct death specification in this case is inextricably related to its decision to allow the two murder counts to be tried together. Though it is impossible to show that being presented with evidence of both murders influenced the jury’s decisions, it is equally impossible to show that it did not. I believe that holding a dual trial, however economical of judicial resources, was error.
{¶ 113} This court’s continued reluctance to establish a clear standard for determining whether two murders occurred as part of a course of conduct will only result in more course-of-conduct cases like this one. The two murders were unrelated, occurred 19 days apart, and involved two people that had no relation to each other. The two murders were not committed in a similar way, were not committed in the same transaction, and were not committed for a common reason. In short, the only thing the two murders had in common was the murderer.
{¶ 114} The majority’s conclusion that the two murders were part of a course of conduct because Scott was making a “deliberate effort * * * to earn a reputation as an indiscriminate killer” is cursory. I do not blame the prosecutor for bringing the course-of-conduct charge. I blame this court for not setting an appropriate standard for determining what constitutes a course of conduct involving the purposeful killing of or attempt to kill two or more persons.
{¶ 115} I have been in the majority in several decisions upholding a sentence of death based, at least in part, on a course-of-conduct death specification when the facts supported the specification. See State v. Tibbetts (2001), 92 Ohio St.3d 146, 749 N.E.2d 226 (defendant committed two murders in the same house, at approximately the same time, and in a similar manner); State v. Awkal (1996), 76 Ohio St.3d 324, 667 N.E.2d 960 (defendant killed two people at the same time with the same weapon); and State v. Dunlap (1995), 73 Ohio St.3d 308, 652 N.E.2d 988 (defendant committed second murder ten days after the first murder, while committing a robbery to facilitate his flight from the law). The two murders in this case were not committed as part of a course of conduct.
{¶ 116} Furthermore, there was ample evidence to support other death-penalty specifications, rendering the course-of-conduct specification unnecessary. I would reverse the course-of-conduct death specification. I dissent.
John D. Ferrero Jr., Stark County Prosecuting Attorney, and Ronald Mark Caldwell, Assistant Prosecuting Attorney, for appellee. Annette L. Powers, for appellant.