{¶ 60} Being unable to concur with the majority or concurring opinions, I must respectfully dissent and would sustain all six assignments of error and remand the case to the trial court for a new trial for the reasons that follow.
{¶ 61} The majority overrules the second assignment of error because trial counsel failed to object upon the grounds reached on appeal. However, trial counsel did object to the admission of the prejudicial evidence that was obviously inappropriate evidence of comments made by the witness not to defendant but to a companion during a trip to Kentucky because he had a "bad feeling" about appellant. The objection made by counsel should have been sustained, and it was plain error to admit that testimony, which was not relevant to the issues.
{¶ 62} The first assignment of error raises the issue of prosecutorial misconduct depriving defendant of fundamental constitutional rights. The witness in question was the same witness involved in the second assignment of error. For the same reasons, this assignment of error is well taken because the admission of this evidence which was not relevant and was based upon the witness's feelings and beliefs about appellant, not actual knowledge of relevant facts. *Page 313
{¶ 63} The third, fourth, and fifth assignments of error are considered together by the majority. They will also be so discussed in this dissent. They relate to the unusual proceedings of the trial judge. The original trial judge presided through Friday, September 8, 2006, and submitted the case to the jury. After considerable deliberations, the jury sent a note inquiring as to what would constitute a hung jury, and the judge returned a reply that "[m]any more hours of deliberations" would be required. The jury then requested advice, indicating that one juror was having difficulty basing a guilty verdict upon the testimony of one of the witnesses, but this difficulty or "inability was not specific to just that one witness." The trial court did not respond to the question but instead sent the jury home for the weekend to reconvene Monday morning.
{¶ 64} However, on Monday morning, the trial judge was not there. Instead, a different judge of the trial court appeared to preside. However, the new judge, when she entered the courtroom, told the parties on the record that she had sua sponte excused one of the deliberating jurors due to a medical issue. This new trial judge then replaced the excused juror with an alternate juror. The new judge then addressed the note left unanswered by the original trial judge even though the excused juror was the juror referred to in the note. The state has conceded error by the new trial judge's ex parte excusing a deliberating juror. An after-the-fact objection was futile. The juror was excused and no longer available. In light of the state's concession of error, assignment of error four should be sustained, since the prejudicial nature of the error is obvious. The new trial judge excused the one juror who was known to be questioning the prosecution's case because of "inability" to believe the testimony of more than one of the state's witnesses.
{¶ 65} Assignment of error six should be sustained because the affirmance by the majority is predicated in large part to the failure of trial counsel to object to various other matters raised by the other five assignments of error. Had the trial counsel made the timely and correct objection, presumably the trial court would not have committed the error. *Page 314