STUART, Justice.
WRIT DENIED.
MOORE, C.J., and HOUSTON, SEE, LYONS, BROWN, HARWOOD, and WOODALL, JJ., concur.
JOHNSTONE, J., dissents.
JOHNSTONE, Justice (dissenting).
In my opinion, we should grant the petition on the single issue, a question of first impression, of whether a single prior conviction for assault in the third degree can negate the § 13A-5-51(1), Ala. Code 1975, mitigating circumstance of no significant history of prior criminal activity. The Court of Criminal Appeals decided this question of first impression in the affirmative in Stallworth's case, Stallworth v. State, 868 So.2d 1128, 1174 (Ala.Crim.App. 2001). Stallworth raises this issue at pages 28-30 of his petition and pages 51-52 of his brief.
Socking someone in a fistfight can constitute assault in the third degree. I respectfully submit that this offense is too trivial to negate this statutory mitigating circumstance and thereby to play such a pivotal role in causing a defendant's death.