{¶ 49} Since State v. Peeks, Franklin App. No. 05AP-1370,2006-Ohio-6256, was a recent decision of this court, I, as a visiting (or assigned) judge, am constrained to follow that decision of this court. However, I am also constrained to note that the Ohio Supreme Court in State v. Foster, 109 Ohio St. 3d 1, 2006-Ohio-856, could have adopted the *Page 27 reasoning of Peeks but did not do so. Nonetheless, I concur in the overruling of the fifth assignment of error based upon Peeks.
{¶ 50} As to the second assignment of error, it is unfortunate that the trial court had an apparent misunderstanding as to circumstances surrounding the murder of the juror's brother, whether the trial court would have exercised its discretion differently had the trial court correctly understood the circumstances is a matter of speculation. Here, the trial court exercised its discretion with an erroneous understanding of the factual circumstances involved. Nonetheless, I concur in the overruling of the second assignment of error for the reason that the voir dire question was unclear as indicated by the majority, because the murder of the juror's brother occurred some 30 years before the voir dire question, and because there is no other indication of possible bias on the part of the juror. *Page 1