¶1dissenting. I dissent from the majority’s imposition of the death penalty. As I stated in my dissent in State v. Simko (1994), 71 Ohio St.3d 483, 501-502, 644 N.E.2d 345, 359-360, the General Assembly has granted this court an imprecise mandate regarding our proportionality review in death penalty cases. I view our role pursuant to R.C. 2929.05 as determining “whether the penalty of death is appropriate in a particular case, given the penalty’s role in our overall system of justice.” Simko at 502, 644 N.E.2d at 360. I do not believe that Nields’s is the type of crime that the General Assembly did contemplate or should have contemplated as a death penalty offense.
¶2The jury determined that the elements justifying an imposition of the death penalty were present in this case. However, this court’s responsibility to undertake proportionality review requires us to depart from the “checklist” approach in order to seriously review whether the crime committed merits the ultimate penalty. While Nields took some traveler’s checks and drove off in the victim’s car, thereby satisfying the requisite robbery element for a death penalty offense, this case is not about robbery. It is about alcoholism, rage, and rejection — and about Nields’s inability to cope with any of them. It is a crime of passion imbued with pathos and reeking of alcohol. It is also a crime that is all too common, but in stealing some traveler’s checks, Nields bought himself a death sentence.
¶3This court needs to be less clinical and more reflective in determining whether cases like this fit within the death penalty scheme. Prosecutors also must be called upon to use their discretion more thoughtfully. Prosecutors should be exercising their discretion to look for reasons to spare persons from the death penalty rather than to look for ways to shoehorn cases into the death penalty scheme. I believe that Ohioans thirst for justice, not blood.
¶4APPENDIX
¶5“Proposition of Law No. I: The defendant-appellant was prejudiced by a lack of funds to adequately defend himself in this litigation. As a result, Nields was deprived of his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution.
¶6“Proposition of Law No. II: Misconduct by the state’s attorneys in impermissibly introducing prior bad acts testimony violates a defendant’s rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution.
¶7“Proposition of Law No. Ill: Where, in a capital case, the sentencing court considers and weighs invalid or improper aggravating factors in imposing the *45death sentence, that sentence violates the Eighth Amendment to the Constitution of the United States, and the right to due process under the Fourteenth Amendment of the United States Constitution.
¶8“Proposition of Law No. TV: Egregious misconduct by the prosecutor in opening statement, closing argument and argument in the penalty phase of the proceedings was prejudicial as to deny defendant a fair trial in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution.
¶9“Proposition of Law No. V: Defendant-appellant was denied his rights of due process as guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution and Article I, Sections 10 and 16 of the Ohio Constitution as the trial court failed to provide required jury instructions.
¶10“Proposition of Law No. VI: Defendant-appellant was denied his rights to due process as guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution and Article I, Sections Ten and Sixteen of the Ohio Constitution as he received ineffective assistance of counsel.
¶11“Proposition of Law No. VII: The trial court erred in failing to suppress Nields’ statement to the police and the search of his home violated his rights under the Fourth and Fifth Amendment to the United States Constitution, and Article I, Sections Ten and Fourteen of the Ohio Constitution.
¶12“Proposition of Law No. VIII: The judgment of conviction on the aggravated murder counts is unsupported by legally sufficient evidence and is contrary to the manifest weight of the evidence, and as a result, appellant’s rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution were violated. (Argued Together)
¶13“Proposition of Law No. IX: The trial court erred when it failed to rule that Ohio’s death penalty statute violated various international laws and treaties entered into by the United States Senate.
¶14“Proposition of Law No. X: The trial court failed to provide appellant Nields with an independent expert pathologist to assist appellant in both the innocence/guilt and mitigation phases of his capital trial.
¶15“Proposition of Law No. XI: The trial court’s failure to appoint an independent neuropharmacologist deprived appellant Nields of his statutory rights as well as his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution.
¶16“Proposition of Law No. XII: Appellant was denied reasonable bond in violation of his rights under the Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments to the United States Constitution, as well as Article I, Section 9, of the Ohio Constitution.
¶17*46“Proposition of Law No. XIII: Appellant’s indictment was returned by an improperly constituted grand jury and upon inadequately presented evidence in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.
¶18“Proposition of Law No. XIV: The prejudicial publicity, which occurred throughout appellant Nields’ trial, deprived him of his right to a fair trial and a fair and reliable sentencing determination as guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution.
¶19“Proposition of Law No. XV: The admission of gruesome and otherwise prejudicial photographs which were cumulative of each other as well as other evidence violated appellant Nields’ rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution.
¶20“Proposition of Law No. XVI: Requiring that mitigating factors be proven by a preponderance of the evidence violates the Eighth, Ninth, and Fourteenth Amendments to the United States Constitution.
¶21“Proposition of Law No. XVII: The trial court erred when it failed to maintain a complete record of all proceedings in appellant Nields’ capital trial.
¶22“Proposition of Law No. XVIII: The trial court’s application of Ohio’s statutory definition of reasonable doubt in the mitigation phase of appellant’s capital trial deprived him of his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution.
¶23“Proposition of Law No. XIX: The evidence the state obtained in its searches of Nields’ person, vehicle, and residence, both on the night of his arrest and the following week, were the fruits of illegal searches and seizures, and deprived appellant of his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution.
¶24“Proposition of Law No. XX: Improperly suggestive identification lineups deprived appellant Nields of his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution.
¶25“Proposition of Law No. XXI: Ohio’s death penalty law is unconstitutional. The Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and §§ 2, 9, 10 and 16, Article I of the Ohio Constitution establish the requirements for a valid death penalty scheme. Ohio Rev.Code §§ 2903.01, 2929.02, 2929.021, 2929.022, 2929.023, 2929.03, 2929.04 and 2929.05, do not meet the prescribed constitutional requirements and are unconstitutional on their face and as applied to Richard Nields.
¶26“Proposition of Law No. XXII: The trial court erred by allowing Mr. Nields to be tried, convicted, and sentenced to death on an indictment which charged Mr. Nields with an aggravated robbery specification based on the accusation that he *47was ‘the principal offender’ and/or committed the aggravated murder ‘with prior calculation and design,’ in violation of the prohibition against duplicitous indictments, and deprived Mr. Nields of his rights to a unanimous verdict, as well as substantive and procedural due process as guaranteed by the Sixth, Eighth, Ninth, and Fourteenth Amendments to the United States Constitution, Article I, Sections 1, 2, 9,10,16 and 20 of the Ohio Constitution.
¶27“Proposition of Law No. XXIII: The trial court erred by simultaneously sentencing Mr. Nields both on the charge of felony murder and on the same substantive underlying felony charge in violation of the Double Jeopardy Clause of the United States Constitution.
¶28“Proposition of Law No. XXIV: Appellant’s death sentence is excessive and disproportionate to sentences in similar cases, thereby depriving Mr. Nields of his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, as well as Sections 9 and 16, Article I of the Ohio Constitution.
¶29“Proposition of Law No. XXV: Prosecutor’s [sic] have unregulated discretion in determining who will be charged with the death penalty. The discriminatory charging and prosecution actions of the Hamilton County Prosecutor’s Office in appellant Nields’ case deprived him of his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution.
¶30“Proposition of Law No. XXVI: Appellant Nields was denied his right to a fair trial by an impartial jury in his capital case as guaranteed by the Sixth, Eighth and Fourteenth Amendments to the United States Constitution when the trial court failed to excuse for cause jurors whose statements during voir dire indicated that they could not be fair and impartial.
¶31“Proposition of Law No. XXVII: Appellant Nields’ rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution were violated by the improper excusal of prospective jurors.
¶32“Proposition of Law No. XXVIII: The state’s failure to provide access and failing to disclose to trial counsel information material to both the trial and sentencing phases of Mr. Nields’ capital trial deprived him of his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution.
¶33“Proposition of Law No. XXIX: The discriminatory charging and prosecution actions of the Hamilton County Prosecutor’s Office in appellant Nields’ case deprived him of his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution.
¶34“Proposition of Law No. XXX: The trial court’s failure to conduct a hearing or provide a curative instruction to the jury after it discovered that jurors had *48witnessed appellant being escorted by jail guards in shackles deprived appellant of his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution.
¶35“Proposition of Law No. XXXI: The state’s failure to ensure that its witnesses remained separated throughout appellant’s capital trial deprived Mr. Nields of his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution.
¶36“Proposition of Law No. XXXII: A juror’s failure to notify the trial court, prior to the mitigation hearing, that she had been influenced by media coverage seen the day the guilty verdict was returned deprived Mr. Nields of his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution.
¶37“Proposition of Law No. XXXIII: The trial court’s failure to appoint an independent psychologist deprived appellant Nields of his statutory rights as well as his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution.
¶38“Proposition of Law No. XXXIV: The process used to select the foremen of grand juries which return capital indictments in Hamilton County is biased. As a result, appellant’s rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution were violated.
¶39“Proposition of Law No. XXXV: The state’s use of a jailhouse informant to secure Mr. Nields’ conviction deprived appellant of his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution.
¶40“Proposition of Law No. XXXVI: The trial court’s failure to appoint an independent neuropsychologist deprived appellant Nields of his statutory rights as well as his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution.
¶41“Proposition of Law No. XXXVII: Mr. Nields was denied his right to a neutral and detached judge in his capital trial and sentencing proceedings in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution.
¶42“Proposition of Law No. XXXVIII: The preclusion of mitigation evidence at appellant’s sentencing hearing deprived Mr. Nields of his right to a rehable sentencing determination by an informed jury as guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution.
¶43“Proposition of Law No. XXXIX: The trial court committed numerous errors in instructing the jury in the guilt determination phase of appellant Nields’ capital trial in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments *49to the United States Constitution. As a result, appellant’s convictions and death sentence are constitutionally infirm.
¶44“Proposition of Law No. XL: Erroneous instructions at the penalty phase of his capital trial violated appellant Nields’ rights of due process and a fair and reliable determination of the appropriate sentence as guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution.
¶45“Proposition of Law No. XLI: Erroneous instructions at the penalty phase of his capital trial violated appellant Nields’ rights of due process and a fair and reliable determination of the appropriate sentence as guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution.
¶46“Proposition of Law No. XLII: Mr. Nields was deprived of his right to the effective assistance of counsel in the mitigation phase of his capital trial.
¶47“Proposition of Law No. XLIII: Mr. Nields was deprived of his right to the effective assistance of counsel in the innocence/guilt determination phase of his capital trial.
¶48“Proposition of Law No. XLIV: Appellant Nields’ death sentence is unreliable, inappropriate, and violates the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution.”