concurring. While I join the majority decision upholding appellant’s conviction and death sentence, I wish to add the following comments regarding several of the propositions of law raised by appellant.
The majority correctly concludes that neither the exclusion of several prospective jurors nor the death qualification process in the case sub judice violated appellant’s right to a fair trial by an impartial jury. Appellant contends that the trial court improperly excused three jurors who, during voir dire, told the court that their moral views would make it impossible for them to impose the death penalty under any circumstances.2
*26Appellant’s death-qualification argument is virtually identical to that rejected by this court in State v. Jenkins (1984), 15 Ohio St. 3d 164, 188, wherein we stated:
“It follows that, in striving to achieve an impartial jury — one that will fairly judge the facts and apply the law as instructed — the principles set forth in Witherspoon, supra [(1968), 391 U.S. 510], justify excluding those jurors who would never impose the death penalty. Jurors subject to challenge under Witherspoon because they refuse to follow the law not only render the jury impartial for the penalty phase, but also for the guilt phase, of the trial as well. * * *”
In essence, appellant argues that what has resulted by the voir dire *27herein is a jury more likely to convict, rather than an impartial jury. As was stated in Smith v. Balkcom (C.A. 5, 1981), 660 F. 2d 573, 579, certiorari denied (1982), 459 U.S. 882:
“* * * The guarantee of impartiality cannot mean that the state has a right to present its case to the jury most likely to return a verdict of guilt, nor can it mean that the accused has a right to present his case to the jury most likely to acquit. But the converse is also true. The guarantee cannot mean that the state must present its case to the jury least likely to convict or impose the death penalty, nor that the defense must present its case to the jury least likely to find him innocent or vote for life imprisonment. * * *” (Emphasis sic.)
Moreover, this court’s decision in Jenkins is consistent with the United States Supreme Court’s recent pronouncement in Wainwright v. Witt (1985), 469 U.S._, 83 L. Ed. 2d 841, which affirmed the pronouncement set forth in Adams v. Texas (1980), 448 U.S. 38, 45, “* * * as the proper standard for determining when a prospective juror may be excluded for cause because of his or her views on capital punishment.” Wainwright, supra, at 851. In Adams, the high court held that a “state may insist, however, that jurors will consider and decide the facts impartially and conscientiously apply the law as charged by the court.” Id. at 45. In Wainwright, supra, the court reaffirmed Adams and clarified Witherspoon, stating at 851:
“But there is nothing talismanic about juror exclusion under Witherspoon merely because it involves capital sentencing juries. Witherspoon is not grounded in the Eighth Amendment’s prohibition against cruel and unusual punishment, but in the Sixth Amendment. Here, as elsewhere, the quest is for jurors who will conscientiously apply the law and find the facts. That is what an ‘impartial’ jury consists of, and we do not think, simply because a defendant is being tried for a capital crime, that he is entitled to a legal presumption or standard that allows jurors to be seated who quite likely will be biased in his favor.”
These three prospective jurors were dismissed precisely because they stated that they could not, for personal and moral reasons, conscientiously apply the law as instructed by the court. Thus, these persons were properly excluded in a manner consistent with Witherspoon, Adams, Wainwright and Jenkins, supra.3 Accord Foster v. State (Md. App. 1985), 499 A. 2d 1236.
*28Appellant also complains that the trial court’s exclusion of two other prospective jurors was part of a pattern of dismissing for personal reasons any juror who had expressed reservations about imposing the death penalty. The record demonstrates that this argument is without merit.
One of those jurors was excused on the basis that the nature and length of a capital trial would have made it very difficult for her to care for her eighty-three-year-old mother, who had recently become ill. The other juror was excused because the responsibilities of jury service would aggravate her nervous condition, causing stomach problems, insomnia and physical shaking. These were legitimate reasons for dismissal of these individuals. We can discern no pattern of dismissing, for personal reasons, only those jurors opposed to the death penalty and note that a third juror was dismissed due to personal anxiety even though he had expressed no reservations concerning the death penalty.
The majority also correctly concludes that there was reliable and credible evidence to support the trial court’s determination that appellant was competent to stand trial. Pursuant to R.C. 2945.37(A), a defendant is presumed to be competent and must carry the burden of proving, by a preponderance of the evidence, that he is not competent to stand trial. Accord State v. Chapin (1981), 67 Ohio St. 2d 437 [21 O.O.3d 273],
The standard for determining competency was set over a quarter century ago in Dusky v. United States (1960), 362 U.S. 402, where the United States Supreme Court framed the test as whether the accused has a ra*29tional and factual understanding of the proceedings against him as well as the present ability to consult with his lawyer with a reasonable degree of rational understanding.
In the case sub judice, the expert concluded that appellant was able to understand the nature of the proceedings against him and was able to assist in his defense. Because appellant produced no evidence to the contrary, the trial court correctly concluded that he failed to prove his incompetency by a preponderance of the evidence pursuant to R.C. 2945.37(A).
The majority properly finds no merit in appellant’s contention that the trial court abused its discretion in admitting photographs of the scene of the crime and bank envelopes scattered outside the victim’s home. Certainly the photographs of the scene were relevant insofar as the state sought to prove the circumstances surrounding this killing and the cause of Chmielewski’s death. Further, these photographs were important to the state’s proof of its contention that an imprint on the hem of Chmielewski’s nightgown matched a portion of the shoe which appellant was wearing at the time of his arrest. These photographs were not pleasant viewing. They were not, however, so gruesome or gory as to inflame the passions of the jury to the material prejudice of appellant.
A number of bank envelopes were also admitted. This was because bank envelopes had been scattered in a trail leading from the scene of this crime, inside the home, into the street. This evidence was clearly relevant to illustrate the state’s contention that this killing was committed in the course of an aggravated robbery, during which the killer rifled through the victim’s bank envelopes and discarded them in his wake as he fled the home. Thus, the probative value of these photographs and bank envelopes outweighed the danger of any prejudice to appellant and were properly admitted.
In the case sub judice, appellant has also challenged as unconstitutional the prosecutor’s comment in closing argument4 and the trial court’s instruction5 informing the jury that its death sentence was a recommenda*30tion not binding upon the court. Appellant bases this challenge on the recent United States Supreme Court decision Caldwell v. Mississippi (1985), 472 U.S._, 86 L. Ed. 2d 231. The majority properly points out that the situation in Caldwell is not applicable to the case sub judice, but relies mainly on Justice O’Connor’s concurrence in order to distinguish Caldwell. I believe that the plurality opinion should also be addressed and distinguished.
The issue as framed by Justice Marshall was “whether a capital sentence is valid when the sentencing jury is led to believe that responsibility for determining the appropriateness of a death sentence rests not with the jury but with the appellate court which later reviews the case.” Caldwell, supra, at 235-236. The prosecutor in Caldwell told the jury that its decision to impose the death penalty was not final, but rather was automatically reviewable by the Mississippi Supreme Court. The plurality stated that this “delegation” of sentencing responsibility encouraged by the prosecutor deprived the defendant of his right to a fair determination of the appropriateness of the death sentence because an appellate court, unlike the jury, was “ill-suited to evaluate the appropriateness of death in the first instance.” Caldwell, supra, at 240. The court emphasized that the defendant in a capital trial has a constitutional right to full consideration of mitigating factors by those very persons who were present to hear the evidence, witnesses and argument. Id. The court concluded that the prosecutor’s remarks had diminished the jury’s sense of responsibility by urging jurors “to view themselves as taking only a preliminary step toward the actual determination of the appropriateness of death — a determination which would eventually be made by others and for which the jury was not responsible.” Id. at 244. The Caldwell court stated further that the presumption of correctness with which Mississippi’s appellate courts reviewed capital sentences made it impossible for an appellate court to determine the appropriateness of the death penalty in each defendant’s individual circumstances.
The prosecutor’s remarks and the instructions in the case sub judice, which informed the jury that its determination to impose the death penalty was a recommendation, must be examined in light of the Caldwell pronouncement. The final decision as to the appropriateness of the death penalty, the jury was told, was to be made by the trial court. No mention was made of appellate review.
These remarks and instructions were a correct statement of Ohio law. Under our statutory scheme, as opposed to that in Mississippi, the jury does not have sole responsibility for determining the appropriateness of death in the first instance. Its role is tq make a recommendation to the trial judge, who makes the actual determination by independently weighing the aggravating circumstances and the mitigating factors after receiving the jury’s recommendation that the sentence of death be imposed. R.C. 2929.03(D)(2) and (3). Even if the jury’s sense of responsibility *31was affected by knowledge of its role, the trial court, with whom the decision to impose the death penalty rests, serves as a check and balance for a jury’s verdict which may not be appropriate. Although Ohio’s statutory scheme does not place sole responsibility for sentencing on the jury in a capital case, we note that in the case sub judice the jury deliberated for twenty-three hours in the penalty phase alone, indicating that its appreciation of the gravity of its determination had not been diminished by the prosecutor’s remarks or the court’s instruction.6
Further, addressing the plurality’s concern in Caldwell, the appropriateness of the death sentence in the case sub judice was determined in the first instance by those same persons who had been present throughout this trial to hear the evidence, witnesses, argument and mitigating factors — the jury and the trial judge. Additionally, there is nothing in the record which shows that either the jury or the trial judge was misled as to the nature of appellate review of capital cases in the state of Ohio. Indeed, our statutory scheme, in contrast to the presumption of correctness in Mississippi, mandates full and independent review and reweighing by appellate courts of the appropriateness of penalty determinations in each capital case. R.C. 2929.05(A). Thus, the case sub judice is readily distinguishable from Caldwell, supra. In Ohio, the appropriateness of a death sentence is fully considered at every stage from the jury’s recommendation to the trial court’s actual determination and, finally, by independent appellate review by both the court of appeals and state supreme court. For the foregoing reasons, I concur in the majority’s conclusion that the Caldwell decision does not require the reversal of appellant’s convictions.
Finally, I wish to add a caveat regarding the majority’s conclusion (in *32overruling appellant’s fourteenth proposition of law) that the Rules of Evidence do not apply to sentencing proceedings. This sweeping statement is not altogether correct as regards the penalty phase of a capital trial.
Both Fed. R. Evid. 1101 and Ohio Evid. R. 101 state that the Rules of Evidence do not apply at proceedings for sentencing. It appears, however, that this statement is not meant to be as broad as it might seem. Two commentators note by way of explanation pertaining to Fed. R. Evid. 1101 that “despite the fact that Congress has chosen to provide that the Federal Rules of Evidence should not apply during most preliminary and post-trial parts of litigation, the fact remains that many of the Rules will be borrowed and continued in effect during these proceedings. Most of the Congressional concern was with the hearsay rule, and it is difficult to imagine that Congress intended that witnesses should testify without taking an oath, that interpreters should not be provided for non-English speaking persons, and that proper objections should not be made to offers of evidence in proceedings other than trials on the merits.” Saltzburg & Redden, Federal Rules of Evidence Manual (3 Ed. 1982), at 761. As the authors note, Fed. R. Evid. 1101 may be interpreted essentially as a restriction on the application of the hearsay rule. Id. Indeed, R.C. 2929.03(D)(1) contains a specific exception to the hearsay rule which allows admission of presentence reports in the mitigation phase of death penalty trials.
The United States Supreme Court stated in Gregg v. Georgia (1976), 428 U.S. 153, 203-204 that “[s]o long as the evidence introduced and the arguments made at the presentence hearing do not prejudice a defendant, it is preferable not to impose restrictions.” (Emphasis added.) The important protections provided by the Rules of Evidence can not be swept out the door in the penalty phase of a capital case because they are reflective in many instances of important constitutional and procedural safeguards. As illustrated by the foregoing, Fed. R. Evid. 1101 and its counterpart, Ohio Evid. R. 101, restrict the application of the hearsay rule in sentencing proceedings but are not meant to deny the application of the Rules of Evidence altogether during the penalty phase of a capital trial.
Accordingly, I agree with the majority that appellant’s pre-sentence investigative and mental examination reports were admissible during the penalty phase. See R.C. 2929.03(D). I caution, however, that today’s holding is not a carte blanche waiver of all the critical protections afforded by our Rules of Evidence which are crucial to the fair and just determination of the truth in all criminal proceedings. See Evid. R. 102.
For all the foregoing reasons, I concur in the majority’s decision to affirm appellant’s convictions and sentence of death.
The pertinent portions of the dialogue between the court and each of these jurors was as follows:
“THE COURT: Listen, I know that you want to do your duty, and we appreciate your doing so.
*26“This is a very difficult case involving the death penalty or a potential death penalty, and we don’t want to put words in your mouth. And you seem to be saying, and I want to be fair, and I don’t want to put words in your mouth, but that you don’t believe in the death penalty, but you would like to do you duty; is that correct?
“MRS. WINISKI: That is correct.
“THE COURT: That is essentially correct?
“MRS. WINISKI: That is correct.
“THE COURT: And then that question of Mr. Sammon’s is a fair one, that you really couldn’t return a verdict for the death penalty if the facts warranted it, and you wouldn’t follow the law?
“MRS. WINISKI: I don’t think so.
“THE COURT: Fine. She is excused for cause.”
“DR. LARSON: Yes, I understand it, because this, in a sense, I didn’t get when I said previously that I would follow the law.
“THE COURT: Yes.
“DR. LARSON: I think it would — the answer would still stand. I would try to follow the law, but it still might be impossible for me.”
“THE COURT: * * * You indicated that you would, when Mr. Oliver told you you were to follow the instructions of the Court.
“MR. MELENIK: Right.
“THE COURT: But my impressions were, when Mr. Sammon asked you if you would follow the instructions of the Court, and the instructions of the Court, if they indicated that under certain circumstances that you must impose the death sentence, you couldn’t follow the instructions of the court; is that your answer, or not?
“MR. MELENIK: I think, yeah, I probably made a mistake. I couldn’t follow the instructions of the Court, if they were to impose the death sentence.
“THE COURT: You could?
“MR. MELENIK: I could not.
“THE COURT: You could not?
“MR. MELENIK: I could not. I am sorry.
“THE COURT: Okay. I think that this is probably—
“MR. SAMMON: Could I just ask one more question, Judge?
“THE COURT: Yes.
“MR. SAMMON: All right. Are you saying, Mr. Melenik, under no circumstances would you follow the instructions of the Trial Judge and consider for the imposition of the death penalty?
“MR. MELENIK: I would not consider the death penalty at all.
“THE COURT: Thank you.”
In reaching our conclusion today, we are aware of the recent split decision of the Eighth Circuit Court of Appeals, sitting en banc, in Grigsby v. Mabry (C.A. 8, 1985), 758 F. 2d 226, certiorari granted (Oct. 7, 1985), sub nom. Lockhart v. McCree (1985), 474 U.S._, 88 L. Ed. 2d 48.
In Grigsby, the federal court of appeals held that in the guilt phase of a capital trial a jury with “Witherspoon excludables” stricken for cause results in a jury which is conviction-prone and which violates a defendant’s Sixth Amendment right to a fair and impartial jury.
The Eighth Circuit’s decision is in direct conflict with, inter alia, the decisions of the *28Fourth and Fifth Circuit Courts in Smith v. Balkcom (C.A. 5, 1981), 660 F. 2d 573, certiorari denied (1982), 459 U.S. 882; and Keeten v. Garrison (C.A. 4, 1984), 742 F. 2d 129.
As alternatives to the striking for cause of so-called Witherspoon excludables during the guilt phase of a capital trial, the Eighth Circuit recommended adding to the number of alternate jurors who sit during the guilt phase. If the defendant is convicted, a new voir dire would take place and the jury death-qualified, with the “Witherspoon excludables” stricken for the penalty phase. The court of appeals also proposed, as an alternative, identifying the “Witherspoon excludables” at the initial voir dire and empaneling sufficient alternate jurors to take their places after the guilt phase and during the penalty phase of a capital trial.
Although the United States Supreme Court will ultimately determine the validity of the Eighth Circuit’s decision, we agree with the dissenters in that decision who found it both dangerous and ill-advised to require, in essence, two groups of jurors in a capital trial:
“Placing the moral responsibility on the same group of jurors to decide both guilt and punishment is justified by the most significant policy considerations. When one jury hears both phases of the case, the jurors that comprise it cannot evade the heavy responsibility placed upon them of whether a convicted person should receive the death penalty. The court today would seem to require the replacement of some members of the guilt-phase jury with death-qualified jurors for the purpose of considering the death penalty. This division of responsibility between the two groups, even if only a few are replaced, would dilute accountability and disadvantage the accused.” Grigsby, supra, at 247.
Indeed, it is precisely such a diminished sense of responsibility among jurors with which the United States Supreme Court was concerned in Caldwell v. Mississippi, infra.
We also note that the Eighth Circuit did not, in writing its opinion, have the benefit of the Supreme Court’s decision in Wainwright v. Witt (Jan. 21, 1985), 469 U.S__, 83 L. Ed. 2d 841.
Appellant objects to the following statement made by the prosecutor in closing argument:
“MR. SAMMON: The Court will instruct you on your proper role, ladies and gentlemen, and you must find — if you find the aggravating circumstances outweigh the mitigating factors, you must make a recommendation to the Court, but it’s the Court, ladies and gentlemen, and I anticipate he will tell you that, that will make the ultimate decision in this case.”
The portion of the trial court’s instruction to which appellant objects is as follows:
“A jury recommendation to the Court that the death penalty be imposed is just that — a recommendation, and is not binding upon the Court. The final decision as to whether the death penalty shall be imposed upon the defendant rests upon this Court.
“In the final analysis, after following the procedures and applying the criteria set forth in the statute, the Judge will make the decision as to whether the defendant, Lewis Williams, Jr., will be sentenced to death or to life imprisonment.”
It should also be .noted that the record demonstrates that the trial judge endeavored to instill in the jury the importance of its role and indeed heightened the jury’s sense of responsibility.
For example, the trial judge, prior to the jury’s deliberation, instructed the jurors, inter alia, that:
“You decide the disputed issues and the Court provides you with the instructions of law. It is your sworn duty to accept these instructions and to apply the law as it is now given to you by me. You are not permitted to change the law, nor to apply your own conception of what you think the law should be, nor to disregard the law in order to avoid an unpleasant decision.
“Your initial conduct upon entering the jury room is a matter of importance. It is not wise immediately to express a determination to insist upon a certain verdict because if your sense of pride is aroused, you may hesitate to change your position even if you decide you are wrong.
“Consult with one another, consider each other’s views and deliberate with the objective of reaching an agreement, if you can do so without disturbing your individual judgment. Each of you must decide this case for yourself, but you should do so only after a discussion and consideration of the case with your fellow jurors. Do not hesitate to change an opinion if convinced that it is wrong. However, you should not surrender honest convictions in order to be congenial or to reach a verdict solely because of the other jurors.”