concurring-. I concur in the decision and the opinion of the majority. I write separately to bring into sharper focus certain aspects of the trial judge’s conduct that were inappropriate. The purpose of this concurrence is to dispel any impression that, because we have held that the trial court’s conduct was nonprejudicial in this case where the evidence of guilt was overwhelming, such conduct in another case may not be prejudicial.
The foundation of a fair trial is that the court conducts itself in a fair and impartial manner. As the majority observed, “ ‘[a]n independent and honorable judiciary is indispensable to justice in our society.’ ” (Quoting Canon 1 of the Code of Judicial Conduct.) Judges must not only be fair and impartial, they must also avoid conduct that would create the perception that they are not fair and impartial. I agree with the majority that the trial judge’s conduct here did not prejudice the defendant, but that the judge allowed his impartiality to be questioned.
No one would doubt that the trial judge was acting from a sense of responsibility and perhaps kindness when he drove juror Miller to her car. There also can be no qüestion .that there were alternate means by which the trial judge could have and should have demonstrated his concern for the well-being of juror Miller.
I agree with the majority opinion that the trial judge’s conduct was improper in the following respects: (1) he drove the juror to her car, rather than providing an alternate means for her to safely arrive at her destination; (2) he failed to inform counsel the following morning of his conduct the prior evening; (3) he offered to remove the juror if defense counsel requested it, and then denied defense counsel’s motion to remove the juror; and (4) when defense counsel requested a hearing to examine the juror, the trial judge presided over the hearing at which his conduct was in question.
It is the fourth aspect of the trial judge’s conduct that I believe should be more forcefully and unequivocally disapproved than the majority does in its opinion. When defense counsel requested a hearing to determine whether there had been any discussion between the trial judge and juror Miller during their ride in the trial judge’s car, the trial judge should have either remained outside his chambers or should have requested another judge of the Hamilton County Common Pleas Court to conduct the brief hearing. No juror should be placed in the position that juror Miller was placed by the trial judge. As the transcript reflects, the trial court begañ the hearing by explaining the circumstances of his offer of a ride. He then asked the juror to agree with him that they did not talk about the case. WTien defense counsel had his opportunity to inquire of the juror, the trial judge answered three questions for her and expanded upon two of her answers, thereby testing the presumption that a trial judge conducts himself or herself pursuant to the rule and the law.
*125The cases cited by the majority setting forth the procedure and applicable law that a court is to follow when an allegation is made that an improper communication has occurred with a juror all derive from contact with a juror by someone other than the judge who is conducting the trial. Whether one follows the rule that the burden is upon the state to prove juror prejudice or to deny a presumption of prejudice, surely a hearing, however brief, to determine the circumstances of extended private contact between a judge and juror should be conducted by someone other than the judge whose conduct resulted in the circumstance being questioned. We should state such a rule of law in the syllabus of this case.
Lundberg Stratton, J., concurs in the foregoing concurring opinion.APPENDIX
“Proposition of Law No. 1: It is inimical to the rights of the accused in a capital case for the trial judge, during the guilt/innocence phase of the proceedings, to have deliberate, private, personal contact with one of the jurors, not in the presence of the accused or counsel for both parties, in violation of the right of the accused to due process of law under the Fourteenth Amendment to the Constitution of the United States and Art. I Sec[tion] 16 of the Ohio Constitution, and, where the death sentence is ultimately imposed by that juror, and by that judge, such improper contact between judge and juror also violates the Eighth Amendment of the United States Constitution and Art. I Sec[tion] 9 of the Ohio Constitution.
“Proposition of Law No. 2: Where, in the middle of a capital trial, a question arises as to whether the trial court and/or a juror has committed misconduct, it is reversible error and a denial of due process of law, secured to the accused by the Fourteenth Amendment to the United States Constitution and by Art. I Sec[tion] 16 of the Ohio Constitution, for the trial court whose possible misconduct is the issue, to itself preside over the proceedings required by law to determine whether such misconduct has occurred, and, if so, whether it has been prejudicial to the accused.
“Proposition of Law No. 3: Where, in the middle of a capital trial, a question arises as to whether the trial court and/or a juror has committed misconduct, it is a denial of due process under the Fourteenth Amendment to the Constitution of the United States, and Art. I Sec[tion] 16 of the Ohio Constitution, for the trial judge, whose possible misconduct is the issue, conducting an inquiry as to such matters, to conduct that inquiry in such a manner that the juror is essentially informed by the trial court as to the answers that will insulate them both from a finding of misconduct, and which hearing does not establish whether the accused has been prejudiced by the improper private contact between his judge and one of his jurors.
*126“Proposition of Law No. L Where, during a hearing in the middle of a capital trial concerning whether the trial court and/or a juror had committed misconduct, presided over by the trial court, counsel for the accused does not interrogate the juror with sufficient vigor so as to demonstrate each and every conversation occuri-ing between the trial court and the juror during their prolonged personal contact, so as to either confirm or dispel whether or not the misconduct was prejudicial to the accused, the accused has been denied the right to the effective assistance of counsel under the Sixth and Fourteenth Amendments to the Constitution of the United States and Art. I Sec[tion] 10 of the Ohio Constitution.
“Proposition of Law No. 5: In a capital prosecution for aggravated murder, the killing itself is not an aggravating circumstance, and it is error inimical to the right to due process of law under the Fourteenth Amendment to the U[nited] S[tates] Constitution and Art. I Sec[tion] 16 of the Ohio Constitution, as well as the Eighth Amendment to the U[nited] Sftates] Constitution and Art. I Sec[tion] 9 of the Ohio Constitution, for the trial court to admit, at the penalty phase of the trial, evidence including gruesome photographs of the deceased, under the pretext that the killing itself, admittedly not an aggravating circumstance, is nevertheless an essential element of the felony-murder aggravating circumstances of which the offender was convicted.
“Proposition of Law No. 6: Egregious misconduct by the prosecutor in the penalty phase of capital proceedings requires reversal, and where the prosecutor’s final argument for death argues nonstatutory aggravating factors, contains inflammatory remarks and invective against the accused and his counsel, a death sentence based on a jury verdict following such arguments is plain error and violates due process and the Eighth Amendment of the United States Constitution, and their counterparts in the Ohio Constitution, requiring reversal of the death sentence.
“Proposition of Law No. 7: Where a death sentence is imposed after the trial court initially gives a correct instruction as to the definition of mitigating factors, but, after the conclusion of the instructions, thereafter at the request of the state, expressly instructs the jury that the terms ‘fairness’ and ‘mercy’ are to be excised from the definition of mitigating factors, over defense objections, the Eighth Amendment rights of the accused, as well as his Fourteenth Amendment right to due process of law, have been violated, requiring reversal of the death sentence.
“Proposition of Law No. 8: An instruction to a jury in the penalty phase of a capital trial to the effect that it must consider the death sentence before considering any life sentence option renders the death sentence imposed in violation of the Eighth Amendment rights of the accused, as well as the rights secured to him by 0[hio] Constitution] Art. I Sec[tion] 9.
*127“Proposition of Law No. 9: The Ohio death penalty statutes are unconstitutional, violating the Eighth Amendment proscription of cruel and unusual punishments, the Fourteenth Amendment guarantees to due process of law and to the equal protection of the laws, and also violating the concomitant provisions of the Ohio Constitution.
“[Sub-Proposition of Law 9(A):] The death penalty is so totally without penological justification that it results in the gratuitous infliction of suffering, and that consequently, there is no rational state interest served by the ultimate sanction.
“[Sub-Proposition of Law 9(B):] Both locally, statewide and nationally, the death penalty is inflicted disproportionately upon those who kill whites as opposed to those who kill blacks, and even within Hamilton County, the death penalty is selectively imposed, rendering the penalty as applied in Hamilton County arbitrary and capricious on the one hand, and the product of racial discrimination on the other.
“[Sub-Proposition of Law 9(C):] The use of the same operative fact to first elevate what would be ‘ordinary’ murder to aggravated murder, and then to capital, death-eligible aggravated murder permits the state (1) to obtain a death sentence upon less proof in a felony-murder case than in a ease involving prior calculation and design, although both crimes are ostensible [sic ] equally culpable under the Revised Code, and (2) fails to narrow the capital class to those murderers for whom the death penalty is constitutionally appropriate.
“[Sub-Proposition of Law 9(D):] The requirement that a jury must recommend death upon proof beyond a reasonable doubt that the aggravating circumstances outweigh only to the slightest degree the mitigating circumstances renders the Ohio capital statutes quasi-mandatory and permits the execution of an offender even though the mitigating evidence falls just short of equipoise with the aggravating factors, with the result that the risk of putting someone to death when it is practically as likely as not that he deserves to live renders the Ohio capital process arbitrary and capricious, and, in the absence of a requirement that, before death may be imposed, aggravating factors must substantially outweigh mitigating factors, unconstitutional. [Emphasis sic.]
“[Sub-Proposition of Law 9(E):] The Ohio capital statutes are constitutionally infirm in that they do not permit the extension of mercy by the jury even though aggravating factors may only slightly outweigh mitigating factors.
“[Sub-Proposition of Law 9(F):] The provisions [sic] of Crim.R. 11(C)(3) permitting a trial court to dismiss specifications upon a guilty plea only under the nebulous and undefined concept ‘in the interests of justice’ (1) needlessly encourages guilty pleas and the concomitant waiver of the right to jury, to compulsory *128process and to confrontation and (2) reintroduces the possibility that the death sentence -will be imposed arbitrarily and capriciously.
“[Sub-Proposition of Law 9(G):] The Ohio capital sentencing scheme is unconstitutional because it provides no standards for sentencing or review at several significant stages of the process and consequently death sentences are imposed, and reviewed, without sufficient statutory guidance to juries, trial courts and reviewing courts to prevent the unconstitutional arbitrary and capricious infliction of the death penalty.'
“[Sub-Proposition of Law 9(H):] The decision[s] of the Supreme Court of Ohio in [State v. Gumm (1995), 73 Ohio St.3d 413, 653 N.E.2d 253, and State v. Wogenstahl (1996), 75 Ohio St.3d 344, 662 N.E.2d 311] [have] rendered the Ohio capital statutes unconstitutional in that they encourage, rather than prevent, the arbitrary and capricious imposition of the penalty o[f] death.
“[Sub-Proposition of Law 9(1):] The amendments to the Ohio Constitution. occasioned by the passage of Issue One, and the amendments to the Revised Code enacted by the General Assembly to facilitate the changes in the Ohio Constitution governing capital cases, violate the right of capital defendants to be free from cruel and unusual punishments, secured to them by the Eighth Amendment to the U[nited] S[tates] Constitution, and to due process of law and the equal protection of the laws secured to them by the Fourteenth Amendment to the U[nited], S[tates] Constitution. The amendment to R.C. 2953.02, purporting to enable the [Ohio] Supreme Court to weigh evidence in a capital case violates the Ohio Constitution.
“Proposition of Law No. 10: The increased need for reliability required in capital cases by the Ohio and federal Constitutions mandates the granting 'to the defense [of] more than six peremptory challenges.
“Proposition of Law No. 11: The Eighth Amendment requirement of reliability in capital sentencing is violated where the sentencing opinion of the trial court fails to state the reasons why aggravation outweighs mitigation, and relies upon the nature and circumstances of the offense as an aggravating circumstance, as well as other nonstatutory aggravating circumstances.
“Proposition of Law No. 12: Under the Ohio capital statutes, for purposes of proportionality review, death sentences must be compared with all other cases within the jurisdiction in which the death sentence was imposed, as well as those capital cases in which it was not imposed.
“Proposition of Law No. IS: It is reversible error inimical to the right to the fundamentally fair trial guaranteed by the Due Process Clauses of the Fourteenth Amendment to the U[nited] S[tates] Constitution and Art. I Secftion] 16 of the Ohio Constitution for the trial court to deny a motion for separate trials for *129two series of offenses where prejudicial evidence as to one series of offenses is not admissible in the trial of the other series of offenses.
“Proposition of Law No. H: The admission of opinion evidence by police officers to the effect that suspects other than the defendant are not guilty of the offense being tried is prejudicial plain error violative of the defendant’s right to due process of law under the Fourteenth Amendment to the U[nited] S[tates] Constitution, and Art. I Secftion] 16 of the Ohio Constitution.
“Proposition of Law No. 15: It is prejudicial, plain error for a trial court to permit prejudicial hearsay evidence in a capital trial, in' violation of Ohio evidentiary rules and in violation of the right of confrontation secured to the accused by the Sixth and Fourteenth Amendments to the U[nited] S[tates] Constitution, and Art. I Sec[tion] 10 of the Ohio Constitution.
“Proposition of Law No. 16: Where the state fails to establish beyond a reasonable doubt that aggravation outweighs mitigation beyond a reasonable doubt, the death penalty is absolutely precluded, and the imposition of the death sentence under such circumstances constitutes a violation of the offender’s constitutional right to be free of cruel and unusual punishment and also his right to due process of law.
“Proposition of Law No. 17: Where there is slight asportation, which is merely incidental to the underlying crime, and committed without a separate animus, a conviction of kidnapping is contrary to law and violates the Due Process Clause of the Fourteenth Amendment and Art. I Sec[tion] 16 of the Ohio Constitution.
“Proposition of Law No. 18: Proof that the defendant grabbed the victim momentarily, and dragged her a few feet, and asked her for money only after her release from his grasp, is legally insufficient to support convictions for robbery and kidnapping, but support, at most, a misdemeanor assault conviction.
“Proposition of Law No. 19: Where the state fails to prove beyond a reasonable doubt the essential elements of aggravated murder, aggravated robbery, and aggravated burglary, or where there is no separate animus to the burglary and robbery charge, the defendant’s conviction for felony specifications to aggravated murder, as well as the underlying felonies of aggravated robbery and aggravated burglary must be reversed as contrary to the right of the accused to due process of law under the Ohio and federal Constitutions.
“Proposition of Law No. 20: Convictions for aggravated murder, aggravated burglary and aggravated robbery which are contrary to the manifest weight of the evidence must be reversed, as contrary to the right of the accused to due process of law under the Ohio and federal Constitutions.
“Proposition of Law No. 21: Egregious prosecutorial misconduct during the guilt phase of a capital prosecution prejudices the due process right of the *130accused to a fair trial under the Fourteenth Amendment to the U[nited] S[tates] Constitution, and Art. I Sec[tion] 16 of the Ohio Constitution, requiring reversal of his conviction and a new trial.
“Proposition of Law No. 22: It is constitutionally impermissible under the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the U[nited] S[tates] Constitution for the state, in a capital prosecution, to exclude from the jury prospective jurors solely on the basis of their race.
“Proposition of Law No. 23: Where the defendant in a capital murder trial is deprived of the effective assistance of counsel at both the guilt/innocence and penalty phases of his trial, his conviction and death sentence offend the Sixth, Eighth and Fourteenth Amendments to the United States Constitution, and their counterparts in the Ohio Constitution, and must be reversed, and a new trial granted.
“Proposition of Law No. 24: A conviction and death sentence for aggravated murder must be reversed as violations of the fundamental fairness required by the Due Process Clause of the Fourteenth Amendment, and the Sixth Amendment of the right to trial before a fair and impartial jury, as well as the Eighth Amendment prohibition against cruel and unusual punishment, where the conviction and death sentence were obtained through use of repetitive, cumulative photographs of the corpse of the deceased, the net prejudicial effect of which far outweighed their probative value.
“Proposition of Law No. 25: Where the right of a defendant in a capital criminal case to a fair trial is prejudiced by excessive and grossly prejudicial new[s] media accounts, the Due Process Clause of the Fourteenth Amendment requires reversal, and, where the sentence imposed by the jury is death, the Eighth Amendment rights of the accused have been violated as well.
“Proposition of Law No. 26: Convictions obtained through the use of statements obtained in violation of the defendant’s privilege against self-incrimination, secured to him by the Fifth and Fourteenth Amendments to the Constitution of the United States, and Art. I Sec[tion] 10 of the Ohio Constitution, must be reversed and remanded for new trials at which such statements are excluded from evidence.
“Proposition of Law No. 27: Convictions obtained through the use of statements obtained in violation of the defendant’s right to counsel secured to him by the Sixth and Fourteenth Amendments to the Constitution of the United States, and Art. I Sec[tion] 10 of the Ohio Constitution, must be reversed and remanded for new trials at which such statements are excluded from evidence.
“Proposition of Law No. 28: A death sentence recommended by a jury from service on which one or more veniremen were excused because of their views *131concerning capital punishment cannot stand unless it affirmatively appears on the record that each such veniremen [sic] excused for cause unequivocally indicates that his scruples against capital punishment will automatically prevent him from recommending the death penalty and/or that such views will render him unable to return a verdict of guilty no matter what the evidence, and that he is prevented by his scruples from following the instructions of the court and considering fairly the imposition of the death sentence.
“Proposition of Law No. 29: Where, during a criminal trial, there are multiple instances of error, and the cumulative effect of such errors deprives the accused of a fair trial and undermines the reliability of the conviction and the sentence of death imposed upon a jury verdict, the rights of the accused to due process and to be free from cruel and unusual punishment, under the Fourteenth and Eighth Amendments, respectively, of the United States Constitution, and their corollaries in the Ohio Constitution, have been violated, requiring reversal.”