dissenting. I .must respectfully dissent from the result reached by the majority. The most' devastating thing the prosecution can assert about an alleged thief, drunk driver, sex offender or one charged with violence is prior conduct of a similar nature. My experience in presiding over a large number of criminal trials and discussing other such trials with my former colleagues on the trial bench confirms my belief in the extremely prejudicial nature of the “gratuitous” testimony by Wayne Lewis that appellant was a “crazy” man, and that “he is in here [jail] for murder, and he won’t hesitate to do it again.” The majority finds that the trial court’s failure to grant the timely motion for a mistrial was “harmless error.” Frankly, I cannot imagine anything more harmful or inflammatory in character than testimony of this nature, and I believe that the failure to grant a mistrial was reversible error.
Further, the entire focus of the defense was to negate the state’s allegations that appellant committed the offense with prior calculation and design. The evidence clearly established that appellant purposely caüsed the death of Deputy Pence, but to make the death penalty recommendation, the jury had to find that evidence proved beyond a reasonable doubt that the killing was accomplished with prior calculation and design. To find prior calculation and design, the jury must consider appellant’s apparent state of mind and mental processes. See R.C. 2903.01(A); State v. Reed (1981), 65 Ohio St. 2d 117, 19 O.O. 3d 311, 418 N.E. 2d 1359; State v. Cotton (1978), 56 Ohio St. 2d 8, 10 O.O. 3d 4, 381 N.E. 2d 190. Consequently, testimony about propensity and alleged prior offenses could more easily enter into jury deliberations on prior calculation and design than it could enter into deliberations about whether appellant committed a specific act. Thus, I simply cannot accept the notion that any judge could have instructed away the information of a prior offense of murder by appellant or his propensity to commit yet another homicide,4 and reasonably anticipate that twelve citizens would be unaffected in their deliberations concerning the criminal element of “prior calculation and design.”5
However, speculation about the ef-feet of this testimony is not necessary in this cause. Its prejudicial nature was clearly demonstrated by the incident with juror Taylor. As set forth in the majority opinion, juror Taylor asked to be excused from the jury when she overheard a news broadcast in which the prior murder charge was mentioned. She explained, “I heard a version of what happened, why he was in there in the first place, that he had been there previous, and that upset me * * *.” Upon questioning by the *68court and counsel about whether the information would influence her so that she could not be impartial, she replied “* * * I am hoping not * * *,” and professed her desire to be fair. However, her equivocal statement, “I am hoping not,” indicates the profound effect this information had upon her. Given the reaction of juror Taylor, it makes little sense to conclude that similar information did not likewise infect the other eleven jurors.
“* * * [R]egardless of the heinousness of the crime charged, the apparent guilt of the offender or the station in life which he occupies,” every individual is entitled to a fair trial by an impartial jury. Irvin v. Dowd (1961), 366 U.S. 717, 722; Groppi v. Wisconsin (1971), 400 U.S. 505, 509. “The failure to accord an accused a fair hearing violates even the minimal standards of due process.” Irvin v. Dowd, supra, at 722. See, also, Groppi v. Wisconsin, supra, at 509.
Generally, the introduction of evidence indicating that a defendant committed another crime similar in character, but wholly independent of the offense for which he is being tried, is prohibited.6 State v. Hector (1969), 19 Ohio St. 2d 167, 48 O.O. 2d 199, 249 N.E. 2d 912, paragraph one of the syllabus; State v. Curry (1975), 43 Ohio St. 2d 66, 72 O.O. 2d 37, 330 N.E. 2d 720; State v. Burson (1974), 38 Ohio St. 2d 157, 67 O.O. 2d 174, 311 N.E. 2d 526. See, also, Evid. R. 404(B). The admission of such evidence is extremely prejudicial because “[t]he average individual is prone to much more readily believe that a person is guilty of the crime charged if it is proved to his satisfaction that the defendant has committed a similar crime.” State v. Hector, supra, at 174-175, 48 O.O. 2d at 204, 249 N.E. 2d at 916-917. Thus, we have held that the introduction of evidence of prior unrelated crimes is reversible error. State v. Hector, supra; State v. Burson, supra; State v. Curry, supra; State v. Breedlove (1971), 26 Ohio St. 2d 178, 183, 55 O.O. 2d 441, 443, 271 N.E. 2d 238, 241; State v. Wilkinson (1980), 64 Ohio St. 2d 308, 18 O.O. 3d 482, 415 N.E. 2d 261.
Instructions to the jury to disregard testimony of a prior offense are insufficient to overcome the prejudicial effect of such inadmissible evidence. “ ‘* * * [T]oo often such admonition against misuse is intrinsically ineffective in that the effect of such a nonadmissible declaration cannot be wiped from the brains of the jurors. The admonition therefore becomes a futile collocation of words and fails of its purpose as a legal protection to defendants against whom such a declaration should not tell.’ ” Bruton v. United States (1968), 391 U.S. 123, 129. In State v. Breedlove, supra, at 184, 55 O.O. 2d at 444, 271 N.E. 2d at 241-242, an identification using mugshot photographs with police identifi*69cation numerals on them coupled with the direct testimony that suggested to the jury that the defendant had been arrested previously was reversible prejudicial error in spite of the trial court’s instructions to disregard this evidence because “such limiting instruction was not sufficient to overcome the substantial risk that, despite such instruction, the jury would look to the police photographs in determining defendant’s guilt of this offense.” Id. at 183, 55 O.O. 2d at 444, 271 N.E. 2d at 241.
During this very term of court, this rule was asserted in a model of clarity in State v. Allen (1987), 29 Ohio St. 3d 53, 55, 29 OBR 436, 438, 506 N.E. 2d 199, 201, in which all members of this court agreed that: “The existence of a prior offense is such an inflammatory fact that ordinarily it should not be revealed to the jury unless specifically permitted under statute or rule. The undeniable effect of such information is to incite the jury to convict based on past misconduct rather than restrict their attention to the offense at hand. For this reason, we do not consider the trial court’s admonitions to the jury that appellee’s prior convictions are immaterial to his guilt of the present charge sufficient to cure the error.” (Emphasis added.)
The senseless and brutal nature of the offense revealed in the case at bar does not alter appellant’s right to a fair trial in which he is presumed innocent until proven guilty beyond a reasonable doubt. Earlier this term, in State v. DeMarco (1987), 31 Ohio St. 3d 191, 31 OBR 390, 509 N.E. 2d 1256, we reaffirmed that error is harmless when there is no reasonable possibility that it may have contributed to the accused’s conviction. “* * * In order to hold the error harmless, the court must be able to declare a belief that the error was harmless beyond a reasonable doubt.” State v. Bayless (1976), 48 Ohio St. 2d 73, 2 O.O. 3d 249, 357 N.E. 2d 1035, paragraph seven of the syllabus, vacated in part on other grounds (1978), 438 U.S. 911. In the cause at issue there is a likelihood that evidence of the earlier murder charge may have affected the jury deliberations on the element of prior calculation and design. Thus, the trial court could not have properly found that the error in the admission of this evidence was harmless beyond a reasonable doubt.
In my view, the trial court erred in denying the motion for a mistrial. Appellant was denied fundamental due process of law and a fair trial by his peers and a second trial should be granted.
H. Brown, J., concurs in the foregoing dissenting opinion.Defendant was in jail on a charge of murder as opposed to a conviction. However, the “gratuitous remark” by the witness clearly suggested that defendant had already been convicted of murder.
A second incident involving the prior murder charge occurred during trial when juror Taylor informed the court that she wished to be excused from the jury because she had heard on the news that, at the time of the offense at issue, appellant was serving time for another murder charge. Rather than dismiss the juror immediately, the court permitted her to remain on the panel. This compounded the problem noted herein. Allowing a juror to remain after she has expressed her desire to be excused due to a clearly prejudicial news account that has come to her attention is erroneous, especially when her stated reservations are ignored.
Exceptions to this rule may be permitted “where the prior offense is part of a common plan or scheme or where it tends to prove motive, intent, knowledge or identity, not because the prior acts prove that defendant is crime prone, but in spite of such fact * * *. [Emphasis sic.]’’ State v. Hector (1969), 19 Ohio St. 2d 167, 48 O.O. 2d 199, 249 N.E. 2d 912, paragraph two of the syllabus; see, also, Ohio Evid. R. 404(B); R.C. 2945.59 and State v. Breedlove (1971), 26 Ohio St. 2d 178, 183, 55 O.O. 2d 441, 443, 271 N.E. 2d 238, 241. These exceptions must be read narrowly and are strictly construed against the state. State v. Burson (1974), 38 Ohio St. 2d 157, 158, 67 O.O. 2d 174, 175, 311 N.E. 2d 526, 528; State v. DeMarco (1987), 31 Ohio St. 3d 191, 31 OBR 390, 509 N.E. 2d 1256.