dissenting. I agree with Justice Cook’s concurrence, except that I do not believe that the error in failing to halt Murphy’s interview was harmless. I write separately to address several other issues.
“The constitutional purpose of statutory aggravating circumstances is to narrow the class of murderers to those deserving society’s ultimate punishment, the death penalty. Zant v. Stephens (1983), 462 U.S. 862, 877, 103 S.Ct. 2733, 2743, 77 L.Ed.2d 235, 249-250. See Rosen, Felony Murder and the Eighth Amendment Jurisprudence of Death (1990), 31 B.C.L.Rev. 1103, 1121.” State v. O’Neal (2000), 87 Ohio St.3d 402, 421, 721 N.E.2d 73, 91-92 (Pfeifer, J., dissenting). The felony-murder rule embodied in R.C. 2929.04(A)(7), the aggravating circumstance charged and proved in this case, is not particularly well suited for guidance in distinguishing between those who deserve death and those who do not. One state supreme court has struck down the statute listing simple felony murder as an aggravating circumstance, holding that it failed to sufficiently narrow the class of death-eligible offenders. State v. Middlebrooks (Tenn.1992), 840 S.W.2d 317, 347.4 One commentator has called felony murder the “least defensible” aggravating circumstance. Ledewitz, The New Role of Statutory Aggravating Circumstances in American Death Penalty Law (1984), 22 Duq. L.Rev. 317, 380, fn. 230. This case is a good example of why they reached those conclusions.
The aggravating circumstance in this case is standard felony murder. If Murphy had not demanded or taken the gold chains worn by Brooks, the death *562penalty would not have been possible in this case. Although the mitigating circumstances are not overwhelming, the record indicates that Murphy had significant developmental disadvantages. Basically, he had never been taught right from wrong. In spite of this, he had no documented history of violent behavior.
Murphy is not the type of hard-core criminal targeted by the death penalty, the type who cold-bloodedly plans and executes murders. See State v. Smith (2000), 87 Ohio St.3d 424, 721 N.E.2d 93; State v. Green (2000), 90 Ohio St.3d 352, 738 N.E.2d 1208. Murphy committed a heinous, senseless act. He shot and killed Andre Brooks. The lives of Brooks’s family and friends have been irreparably altered. Brooks himself will never again have the chance to experience the joys and sorrows of life. That is tragic and nothing can change it. Murphy must be severely punished for the murder he committed. We are required to independently determine whether his punishment should include a sentence of death.
R.C. 2929.04(B)' and (B)(7) require the sentencer to consider “the history, character, and background of the offender” and “[a]ny other factors that are relevant to the issue of whether the offender should be sentenced to death.” If our obligation to independently weigh mitigating factors against each aggravating circumstance is to mean anything, this court must, when the circumstances warrant, reverse a sentence of death. We must distinguish between a defendant’s guilt and whether he should be put to death. See Crocker, Concepts of Culpability and Deathworthiness: Differentiating between Guilt and Punishment in Death Penalty Cases (1997), 66 Fordham L.Rev. 21.
We are required by statute to conduct a proportionality review in which we “consider whether the sentence is excessive or disproportionate to the penalty imposed in similar cases.” R.C. 2929.05(A). This court has construed this language to limit review to similar cases in which the death penalty was imposed. State v. Steffen (1987), 31 Ohio St.3d 111, 31 OBR 273, 509 N.E.2d 383, paragraph one of the syllabus. However, the “similar cases” language of R.C. 2929.05(A) is ambiguous. A narrow interpretation, such as this court’s current one, is a possibility. Another is that “similar cases” refers more broadly to all factually similar cases, whether or not a capital specification was charged or proved.
In my view, Murphy should be compared to the universe of all Ohio cases in which a person was killed during the course of a robbery, not just to cases in which a person was killed during the course of a robbery and in which a sentence of death was imposed. When we compare a case in which the death penalty was imposed only to other cases in which the death penalty was imposed, we continually lower the bar of proportionality. The lowest common denominator becomes the standard. This result is ethically indefensible.
*563Apparently to assist us in reviewing proportionality, R.C. 2929.021 requires that certain information for each indictment charging aggravated murder be provided to our court. However, the information provided is incomplete. It does not include race or any other constitutionally significant factors that this court could use to determine whether our justice system fairly treats all the defendants that come before it. It is time for this court to augment the statutorily required information we do receive by gathering constitutionally significant information that could assist us in analyzing proportionality.
Murder that fits within the four corners of the death penalty statute does not necessarily merit prosecution as a death penalty case. R.C. 2929.04(A) states that “[imposition of the death penalty for aggravated murder is precluded unless one or more of the following [aggravating circumstances] is specified in the indictment * * * and proved beyond a reasonable doubt.” The statute does not require prosecutors to seek the death penalty whenever an aggravating circumstance can be proven beyond a reasonable doubt; it simply prohibits them from seeking the death penalty absent a statutory aggravating circumstance. Prosecutors are expected to exercise their discretion when seeking the death penalty. When Ohio’s death penalty statute was enacted, it was designed to be narrowly tailored to allow the execution of only the most vile and evil murderers.
The death penalty scheme established by the General Assembly is demonstrably better than those of Texas or Illinois. But it is only as good as the principals in our criminal justice system make it. Prosecutors must continue to zealously pursue convictions while tempering their desire to seek death. Defense attorneys must continue to zealously advocate even when, as in this case, guilt is beyond doubt. Trial judges must continue to ensure that defendants receive the full protections of the Constitution. Juries must continue to receive as much information as is necessary to fulfill their duties and responsibilities. Each principal in the system must continually strive to ensure that we sentence to death only those murderers who truly deserve death.
This court is no different. We must be willing to do serious proportionality review. Even though approximately two hundred males currently reside on death row,5 this court has never overturned a death sentence based on proportionality review. “Proportionality review” must be more than hollow words; it must someday mean that this court will overturn a sentence of death based solely on proportionality review.
Finally, alternate jurors were in the jury room during both the guilt and penalty phases while the jury deliberated. Crim.R. 24(F) states that “[alternate *564jurors in the order in which they are called shall replace jurors who, prior to the time the jury retires to consider its verdict, become or are found to be unable or disqualified to perform their duties. * * * An alternate juror who does not replace a regular juror shall be discharged after the jury retires to consider its verdict.” It is readily apparent that Crim.R. 24(F) was violated because the alternate jurors were not discharged properly. Further, allowing the alternate jurors to be present during jury deliberations violated the sanctity of the jury process. See United States v. Virginia Erection Corp. (C.A.4, 1964), 335 F.2d 868, 872; Koch v. Rist (2000), 89 Ohio St.3d 250, 252, 730 N.E.2d 963, 965. As in Koch, which involved a civil trial, “the case before us involves extraordinary misconduct where a stranger to the jury entered the jury room and remained there throughout the entire deliberative process.” Id. at 251, 730 N.E.2d at 965.
Ron O’Brien, Franklin County Prosecuting Attorney, and Susan E. Day, Assistant Prosecuting Attorney, for appellee. W. Joseph Edwards and Barbara A. Fambacher, for appellant.I likely would find that this error alone warrants a reversal of the death sentence, even under a plain error standard. However, I need not so find given the other issues discussed above. After reviewing the record, weighing the aggravating circumstance against the mitigating factors, and considering proportionality, I conclude that the sentence of death should be reversed and that Murphy should be sentenced to life in prison without parole.
. The Tennessee legislature amended the offending statute in response to Middlebrooks. See Tenn.Code Ann. 39 — 13—204(i)(7).
. The Ohio Department of Corrections website lists two hundred and one death row inmates, all male, as of April 2, 2001. See http://www.drc.state.oh.us/public/deathrow.htm.