¶1concurring in part and dissenting in part.
¶2{¶ 169} I concur in the bulk of the majority opinion. I write separately because of my conviction that appellant should not be subject to a penalty of death on remand.
¶3{¶ 170} Beyond a reasonable doubt, Shawn Williams killed Catrise Gregory. For that unconscionable crime he should be punished severely. However, he should not be sentenced to death, because evidence of rape, the death-penalty specification in this case, is lacking.
¶4{¶ 171} Williams would not be subject to the death penalty absent his conviction for rape. The primary evidence of rape is a doctor’s testimony that a bruise on Catrise’s labia minora could not have been caused by “normal sexual activity.” That seems a bold statement given the wide range of consensual sexual activity *519practiced in our society. I find it difficult to believe that the bruise could only have been caused by rape.
¶5{¶ 172} Williams and Catrise had a history of having consensual sex. Given that, I have considerable doubt that the sperm found on a cervical swab and in Catrise’s underwear could only have been deposited there as a result of Williams raping her. I do not believe that the circumstantial evidence supports, beyond a reasonable doubt, a conviction of rape and the concomitant death specification. Accordingly, I would reverse Williams’s rape conviction and his rape specification conviction and remand the cause for sentencing based solely on the murder conviction.
¶6APPENDIX
¶7{¶ 173} Proposition of Law No. 1: Because a verdict is final only when it is entered on the journal, a juror may retract her verdict before it is entered on the journal, and when she does, a new trial must be granted.
¶8{¶ 174} Proposition of Law No. 2: Where the attorney client relationship has been irreparably harmed, the trial court must appoint new counsel.
¶9{¶ 175} Proposition of Law No. 3: Where a defendant is summoned off the street, taken back to the police station, questioned in a small room by two officer [sic] sporting their sidearms [sic], [and], the interrogation is custodial in nature, the fact that the defendant was not arrested at that time does not change the nature of the interrogation.
¶10{¶ 176} Proposition of Law No. 4: Jurors who do not unequivocally state that they could not impose the death penalty and can follow the court’s instructions may not [be] dismissed for cause juror [sic] under R.C. 2945.25(C) and Witherspoon v. Illinois [ (1968), 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776].
¶11{¶ 177} Proposition of Law No. 5: A prospective juror in a capital case who indicates that he will follow the court’s instructions may not be excused for cause based on his unwillingness to follow the court’s instructions, and it is not the court’s province to challenge the response of the qualified juror.
¶12{¶ 178} Proposition of Law No. 6: A prospective juror in a criminal case who indicates that he will find police officers especially credible because they are highly trained observers is not impartial and a challenge for cause should be granted.
¶13{¶ 179} Proposition of Law No. 7: The prosecutor may not dismiss a juror merely because of that jurors [sic] hesitation to invoke the death penalty.
¶14{¶ 180} Proposition of Law No. 8: The trial court erred by allowing the jury to consider prejudicially irrelevant evidence.
¶15*520{¶ 181} Proposition of Law No. 9: Prosecutor may not conjecture about inflammatory subjects not supported by the evidence or address the jury on the subject of victim impact during the culpability determination phase of a capital trial.
¶16{¶ 182} Proposition of Law No. 10: Where the court provides the jury with numerous inaccurate trial phase instructions, a defendant is deprived [of] his protections under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.
¶17{¶ 183} Proposition of Law No. 11: The failure of trial counsel to perform his duties in compliance with the professional norm of a capital litigator constitutes ineffective assistance of counsel.
¶18{¶ 184} Proposition of Law No. 12: Where the jury unreasonably relies upon evidence that is clearly not credible to sustain a conviction against a defendant, a reviewing court must reverse the tainted convictions and order a new trial.
¶19{¶ 185} Proposition of Law No. 13: The trial court may not hold hearings during the trial without the presence of the defendant. Such action is violative of the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution.
¶20{¶ 186} Proposition of Law No. 14: Where a defendant waives mitigation or refuses to assist in its preparation a trial court must conduct a hearing to ensure the waiver is valid and refer the defendant for a competency evaluation to ensure the validity of the waiver.
¶21{¶ 187} Proposition of Law No. 15: Pervasive prosecutorial misconduct during opening statement and closing argument at the mitigation phase of a capital trial denies a defendant his rights to fair trial and due process and to be free from cruel and unusual punishment.
¶22{¶ 188} Proposition of Law No. 16: Trial counsel provide their client with constitutionally ineffective assistance at the mitigation phase of a capital trial when they allow their personal feelings about the client to interfere with their professional duty, fail to pursue mitigation investigation and when they fail to object to egregious misconduct on the part of the prosecutor during closing argument.
¶23{¶ 189} Proposition of Law No. 17: A trial court’s inaccurate penalty phase instructions misguide the jury as to their duties under the law rendering the resultant sentence unreliable and violative of the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Sections 9,10 and 16, Article I of the Ohio Constitution.
¶24{¶ 190} Proposition of Law No. 18: When a jury at the mitigation phase of a capital trial is deadlocked on the death sentence, the court must instruct it to *521move on and determine which life sentence to impose; when the deadlock is total, the court itself must impose a life sentence on the defendant.
¶25{¶ 191} Proposition of Law No. 19: Ohio’s death penalty law does not genuinely narrow the class of persons eligible for the death penalty and reasonably justify the imposition of that penalty on a defendant when the defendant is the only alleged participant in the crime, is convicted of felony aggravated murder, R.C. 2903.01(B), and the only death penalty specification is that the murder was committed during the course of the same underlying felony.
¶26{¶ 192} Proposition of Law No. 20: A trial court denies a capital defendant his rights to due process under the constitutions of the United States and the State of Ohio when it fails to conduct an inquiry as to whether he knowingly and intelligently waived his right to testify at trial.
¶27{¶ 193} Proposition of Law No. 21: In order to comport with due process, the right to meaningful appeal, and avoid cruel and unusual punishment, the universe of cases to be examined for review of proportionality must include all those in which a capital specification has been charged.
¶28{¶ 194} Proposition of Law No. 22: Residual doubt must be available as a mitigating factor in a capital trial in order to assure protection of the defendant’s constitutional rights to due process and a fundamentally fair proceeding as well as his constitutional protections against cruel and unusual punishment.
¶29{¶ 195} Proposition of Law No. 23: Ohio’s death penalty law is unconstitutional both in the abstract and as applied.