concurring in part and dissenting in part.
{¶ 147} I concur in the affirmance of appellant’s convictions. However, I disagree with the determination that appellant’s death sentence must be vacated and this matter returned to the trial court for resentencing. Specifically, I believe that the record does not contain evidence of improper alternate-juror behavior of the type necessary to raise a presumption of prejudice. Moreover, the record does not reveal indicia of improper alternate juror behavior sufficient to support a finding of actual prejudice to appellant.
{¶ 148} The conclusion that the death sentence should be vacated is purely speculative and is a result of the lead opinion’s failure to place the narrow incidents focused on to support a supposed presumption of prejudice within the context of a long, emotionally charged and complex death-penalty trial. When viewed from a perspective based on the trial as a whole, it is apparent that no prejudice occurred. Therefore, I vigorously dissent, not only because the facts of this case necessitate it but also because affirmance on this issue is supported by case law and applicable legal standards.
{¶ 149} Crim.R. 52(A) provides, “Any error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded.” In United States v. Olano (1993), 507 U.S. 725, 737, 113 S.Ct. 1770, 123 L.Ed.2d 508, a case implicating Fed.R.Crim.P. 52(b), the United States Supreme Court observed that “[t]he presence of alternate jurors during jury deliberations is not the kind of error that ‘affect[s] substantial rights’ independent of its prejudicial impact.” Because there is no prejudicial impact, we should affirm the judgment of the court of appeals and go on to resolve the other issues found moot.
{¶ 150} The lead opinion attempts to articulate standards for its analysis based on a presumption of prejudice and a resulting burden on the state to rebut the presumption. However, due to the inherently speculative nature of the entire inquiry, since jury deliberations are confidential and conducted in secrecy, the *158state will virtually never be able to rebut a presumption of prejudice. Therefore, as a practical matter, there is no difference between a presumption of prejudice and actual prejudice in these types of cases. The standard the lead opinion sets forth, based on an apparent presumption of prejudice, is actually tantamount to a standardless inquiry into actual prejudice, and becomes little more than “we know it when we see it” or perhaps, “we think we know it when we think we see it” due to the lack of any concrete evidence of what actually occurred.
{¶ 151} The lead opinion appears to discount the significance of the answers the jurors gave when they were individually polled after determining to recommend a death sentence. The polling gave each juror a clear opportunity to state any disagreement with the jury’s final decision, and each juror distinctly stated that a death sentence was his or her true verdict. The jurors’ answers in polling significantly weaken any presumption of prejudice that might attach to the deliberation proceedings and also make it apparent that no actual prejudice occurred.
{¶ 152} Defense counsel did not enter on the record an objection to the alternates’ presence at the guilt-phase deliberations. Furthermore, counsel waited to object on the record until after the sentencing deliberations had already commenced. This could be viewed as substantial acquiescence in the practice the lead opinion focuses on in its search for prejudice. The lead opinion fails to grasp that the reasons for this acquiescence must be comprehended to place the essence of appellant’s objection in its proper context.
{¶ 153} Similarly, the trial judge’s decisions in this case to allow alternates to sit in on deliberations at both phases of the trial should not be considered in a vacuum. Those decisions must be analyzed from a perspective that recognizes that the approach taken by the trial judge in this case was by no means unique and was consistent with the approach being taken at the time of this trial by many other trial judges. The lead opinion’s impercipient analysis verifies the old adage that “hindsight is 20/20” in that the lead opinion totally fails to appreciate that only very recently has the extent of this practice come to light. The lead opinion’s failure to appreciate the actual setting of the trial leads it to the inevitable and almost preordained conclusion that prejudicial error must have occurred.
{¶ 154} For the specific reasons that follow, a close scrutiny of the entire trial record evinces insufficient evidence of prejudice, either presumed or actual, to require reversal.
I
Alternate-Juror Misconduct
{¶ 155} The lead opinion begins its consideration of the section of its opinion titled “Alternate-Juror Misconduct” with the statement that “Gross asserts in his *159fourteenth proposition of law that the trial court erred in not declaring a mistrial or granting a new trial based on the participation of alternate jurors in the penalty-phase deliberations.” However, this statement is misleading, since the fourteenth proposition, as reproduced in the Appendix to the opinion, actually reads: “A capital defendant is entitled to a fair and reliable determination of his guilt and sentence by a jury that is properly instructed and that follows the court’s instructions. Where the jury ignores the court’s admonitions and discusses the case outside of the jury room and where jurors intimidate other jurors there is a denial of due process and a fair trial in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments, as well as Article I, Sections 2, 9, 10, and 16 of the Ohio Constitution.”
{¶ 156} In framing the alternate-juror issue in a way that best suits its own agenda, the lead opinion recasts this proposition to facilitate its analysis. There are several problems with this approach.
{¶ 157} In this fourteenth proposition of law, as in the fourteenth assignment of error raised in the court of appeals, appellant makes a claim that is generally based on juror misconduct. This claim does not focus on the presence of alternate jurors in deliberations but rather on the alleged misconduct of individual regular jury members, and not the alternates. In turning this proposition into one based on alternate juror misconduct in penalty-phase deliberations, the lead opinion uses it to justify placing a burden on the state to demonstrate an absence of prejudice — a burden that the lead opinion finds the state was unable to meet. However, because the issue has never been articulated in this manner, the state never had an opportunity to meet this burden. The lead opinion announces for the first time that the burden is on the state and then faults the state for failing to meet its burden of proof on a question that the state did not even know was being raised. The way appellant actually raises this issue, along with a consideration of all relevant events that occurred at trial, reinforces the view that no prejudicial error is present in this case. That conclusion is further reinforced by an inquiry into the reasons the alternates were in the jury room in the first place, discussed later in this opinion.
{¶ 158} Furthermore, the federal cases cited by the lead opinion for its determination that prejudice is presumed in this case are distinguishable, since they focus on the actual substantive participation of alternates in deliberations, through such actions as signing a jury form. In light of the fact that appellant’s argument in proposition of law number fourteen focuses on general juror misconduct and not specifically on the substantive participation of alternate jurors in deliberations, this case should be evaluated under an “actual prejudice” standard, and should not give rise to a presumption of prejudice.
*160{¶ 159} Finally, even where alternates substantively participate in deliberations, the federal courts have not been as inclined to find prejudice and to overturn guilty verdicts as the lead opinion seems to indicate. In United States v. Acevedo (C.A.11, 1998), 141 F.3d 1421, 1422-1423, the trial judge forgot to dismiss two alternates when the jurors retired to deliberate the defendant’s guilt, and the alternates fully participated in the deliberations and joined in a unanimous verdict of guilty composed of 14 votes. When the problem came to light, the trial judge sealed that verdict without reading it, dismissed the two alternates, gave curative instructions, and sent the jury of 12 regular jurors back to deliberate again. After only five minutes of deliberations, the jury returned a guilty verdict. On appeal, despite this obviously active and full participation by the alternates in the first deliberations, the court actually upheld the defendant’s conviction, finding insufficient prejudice to justify reversal. The court did not speculate on the influence the alternates may have had on the jury during deliberations, as the lead opinion seems to do. Even though the lead opinion in the case sub judice cites Acevedo, 141 F.3d at 1424, for the proposition that “[Olano ] implied that once the alternate participates in any way — whether through words or gestures — prejudice is manifest,” it is apparent that the Acevedo court did not find the prejudice to be sufficiently manifest in the situation it reviewed to reverse the conviction. The Acevedo court upheld the conviction despite the fact that the alternates’ participation in that case was active and not subtle, unlike the alleged “participation” in this case.
II
Proceedings at Trial
{¶ 160} Events earlier in the trial are relevant to the issue the lead opinion considers to be confined to the penalty phase. The alternates involved in the incidents cited by the lead opinion were not strangers to the twelve members of the jury. The alternates, along with the jury members, were part of an extensive voir dire to seat a jury, and they listened to the testimony of witnesses and sat through detailed presentations of evidence and arguments in the guilt phase of the trial, sat in on deliberations in the guilt phase without objection, heard evidence and arguments in the penalty phase of the trial, and sat in on deliberations at the penalty phase.
A
{¶ 161} The parties and the judge painstakingly endeavored to seat an impartial jury. Voir dire covered eleven days and makes up approximately 2,500 pages of transcript in the record. The ensuing trial in this case was lengthy, with *161the state presenting numerous witnesses and the defendant calling several as well. The guilt phase of the trial started on July 30, 1996, and lasted ten days, concluding on August 12, 1996. When the trial judge addressed the 12 members of the jury and the five remaining alternates prior to deliberations in the guilt phase on August 12, 1996, at the close of the evidence and arguments, the judge cautioned the jurors not to surrender their “honest convictions” for the sake of simply arriving at a verdict.
{¶ 162} At that point, the judge specifically mentioned the five alternates, and stated that they would be going into the jury room with the 12 jurors. He instructed the alternates to “in no way” participate in deliberations, told them several times that they were to listen and watch only, and counseled that “under no conditions are you to engage in any conversations during these deliberations.” The jury was then sent to the jury room to deliberate. There is no evidence anywhere in the record that the defense attorney objected to the presence of alternates in guilt-phase deliberations, although the defense attorney raised various other issues through objections at that time.
{¶ 163} The jury deliberated from 3:23 p.m. to 5:40 p.m., less than two and one-half hours, and reached its findings of guilty on all charges. All five alternates and 12 jurors were present in the courtroom as the jury verdicts were announced. The jury was polled on each charge, and all 12 jurors individually stated that their verdict on each count was “guilty.” After the jury was polled, the trial judge informed the five alternates that they would be returning as alternates in the penalty phase. There is no evidence in the record at this point in the proceedings of any misconduct or inappropriate behavior by any jury member or alternate juror.
{¶ 164} On August 19,1996, the trial judge held an afternoon session with the attorneys for both sides to put on the record earlier discussions of motions relating to the penalty hearing, which was to start the next day. No participant in this session raised any issue regarding alternate jurors on the record.
{¶ 165} The sentencing phase began on August 20, 1996. Before the jury came in, some matters from the day before were entered on the record. Also, appellant’s nephew was sworn in to testify about his claim that he had overheard a juror talking about the case a few days before the guilty verdict and that the juror implied that he had already formed the opinion that appellant was guilty. The juror denied that he had said anything improper, and the trial judge refused to remove him as a juror. The jury was then brought in, and the mitigation evidence and testimony, as well as appellant’s unsworn statement, were presented for the rest of the day’s session.
{¶ 166} On August 20, 1996, the defense attorney submitted proposed jury instructions for the sentencing phase, stating that appellant did not “waive or *162withdraw his objection to sending the alternate jurors back into the jury room during deliberations with the twelve regular jurors.” Although this statement implies that an objection had already been made, this appears to be the first time the record contains any indication of any objection over the presence of alternates during deliberations.
{¶ 167} The second day of the penalty phase began the morning of August 21, 1996. Outside the presence of the jury, several matters were discussed for the record, none of them relating to alternate jurors. The jury came in and closing arguments were held. The trial judge then instructed the jury for its penalty-phase deliberations. Again, as in the guilt phase, he told them not to surrender their “honest convictions” simply to reach a verdict. The five alternate jurors were told that they would retire to the jury room with the jury, and the trial judge instructed them in clear terms that they were not to participate in deliberations and were to listen and watch only.
{¶ 168} The penalty-phase deliberations started at 10:59 a.m., and there was later a break for lunch. There were still no objections made on the record to the alternates in the jury room at this point. At 1:26 p.m., shortly after the lunch break ended, the jury foreman sent a question to the judge asking whether the alternates were allowed to play cards during deliberations. The trial judge responded, “[N]o.” The jury foreman then sent a question out at 1:59 p.m. regarding the sentencing forms, and the trial court answered it. Then, there were some discussions on the record among the judge, the defense attorney, and the prosecutor, with the defense attorney stating that he wanted to get some things on the record that had been discussed with the prosecutor and the judge, apparently off the record, in the last few days. At this point, in the middle of several other matters not relevant to the alternate-juror issues, the defense attorney stated, with no elaboration, and with no comment on the point by either the judge or prosecutor, “I also object to sending the alternates back into the deliberation room, which was done here.” At the close of the defense attorney’s recitation of all the issues he raised, the trial judge stated, “Overrule everything.” This terminated the discussion without specifying any details on any point being denied.
{¶ 169} At 3:31 p.m., the jury foreman passed a question to the judge: “One alternate is expressing his feelings about the other jurors in a manner that he thinks isn’t right. Everyone is really tense about this. He feels things are going wrong and thinks some people are getting pressured in making decisions. It’s to the point he thinks it [sic] wrong. I on the other hand feel no one has been swayed by force.” Shortly thereafter, two bailiffs were sworn in and questioned on the record about conversations with the jury foreman. One bailiff stated that the jury foreman had knocked on the door at 3:25 p.m. and told him, “It’s getting *163out of hand in here, the alternates are throwing pens and thing[s].” The bailiff testified that he told the foreman to put it in writing and knock on the door again.
{¶ 170} The specific statement about throwing pens apparently never was put in writing, but the note about the alternate expressing his feelings appears to have been a result of the conversation between the bailiff and the jury foreman. Based on the note and the bailiffs’ statements, the trial judge made a decision to bring the jurors into the courtroom to instruct them again, remarking that tension runs high in a trial like this.
{¶ 171} Before the jurors could be returned, the foreman sent out a note at 3:52 p.m.: “Both people that were accused of being ‘pressured’ by the alternate told me when asked if they were pressured, that they did not feel that way. We have come to a decision.” Before the jury came in, the judge told the courtroom spectators that it would be an emotional moment when the jury’s decision was announced, and cautioned them to control themselves.
{¶ 172} At 3:59 p.m., the jury was brought in, along with the five alternates, and the jury’s recommendations of death on both counts were announced. The jury was polled, as it was at the end of the guilt phase, with each individual juror verifying that it was his or her verdict that a death sentence should be imposed on appellant. The trial judge thanked the jury for its service, observing that they had deliberated “some three and a half hours” and remarked that it had been a difficult case. He specifically expressed his appreciation to the alternates for their efforts and also thanked them for their “patience” and “courtesy.” The jury was then finally dismissed.
{¶ 173} On October 18, 1996, the trial judge held a hearing on a motion for a new trial filed by appellant. Among the issues raised in that motion, filed August 30, 1996, were several relating to alleged juror misconduct. The judge dismissed that part of the motion because no supporting affidavits were supplied.
B
{¶ 174} The preceding facts reveal much about the trial beyond the narrow confines the lead opinion focuses on. This was a high-profile case involving the cold-blooded killing of a deputy sheriff (with two of the shots fired point blank into the victim’s head) and tensions were running high. As in any case where the death penalty is sought, the jury felt the weight of its responsibility. It is eminently understandable that individuals could have trouble controlling their emotions in these circumstances. The lead opinion’s myopic view of the record ignores the overall setting surrounding the trial.
*164{¶ 175} Although appellant did raise on the record an objection to the alternate jurors’ presence in penalty-phase deliberations, the circumstances surrounding that objection, as indicated above, show that it was made in passing and was not emphasized. The lead opinion keys on the fact that there was an objection to the practice in this case to distinguish it from similar cases finding no plain error when no objection was raised. However, although appellant did technically raise an objection at trial, it is apparent from the relevant proposition of law and associated briefing that appellant on appeal has not targeted the presence of alternate jurors in penalty-phase deliberations as a basis for reversal, probably because of the way courts were applying the law on this issue at the time appellant’s brief was filed, which was before this court’s decision in State v. Murphy (2001), 91 Ohio St.3d 516, 747 N.E.2d 765.
{¶ 176} Moreover, by not objecting to the presence of alternates in the earlier guilt-phase deliberations, appellant had already acquiesced in a practice that he formally objected to on the record only after penalty-phase deliberations had begun. In addition, appellant filed no written motion specifying the reasons for the objection to alternates in penalty-phase deliberations. While the record does indicate that some oral discussion of this issue with the trial judge must have taken place off the record, it is impossible to discern whether appellant argued the specifics of the issue to the trial judge. All that appears in the record is a bare objection unsupported by any legal reasoning with no citation of any criminal rule or case law. In light of appellant’s earlier acquiescence in allowing the alternates to sit in on guilt-phase deliberations, and the perfunctory manner in which the objection was presented, it was not surprising that the trial court overruled the objection at the penalty phase.
{¶ 177} It does not appear at all clear that there was any activity that could be described as “participation” that is prejudicial to a defendant by the alternates detailed in the record of this case. The cryptic notes written by the jury foreman and the statements relayed by the bailiffs reveal very little that could be actually termed participation. It seems clear that alternates who are playing cards and throwing pens are not by those acts participating in deliberations. In the absence of further elaboration on those activities, it seems fruitless to speculate one way or the other on the impact those actions might have had on the deliberations of the jury.
{¶ 178} Although an alternate was expressing his feelings about some jurors’ being pressured in deliberations, the record of course does not show any details, such as whether these sentiments were conveyed during a break or during the heat of the deliberations. In addition, the substance of the alternate’s allegation was that others in the jury room (the regular jurors themselves) were being pressured; there is no indication that this alternate was participating in delibera*165tions beyond expressing the view that others were (as the statement was relayed by the jury foreman) “getting pressured.”
{¶ 179} While it is apparent that this alternate was thus violating the trial judge’s instructions “to listen and to watch only,” the alternate’s “participation” in this case is not of the type that should lead to a presumption of prejudice or the reversal of the death penalty. Due to the aliunde rule, Evid.R. 606(B), which clearly should apply to any juror (whether regular or alternate) who is present in the jury room during deliberations despite the lead opinion’s protracted discourse to the contrary, any inquiry into what actually went on is foreclosed. But, if we are going to speculate through applying an unanswerable presumption of prejudice, for all we know the alternate may have been against the death penalty and may have considered statements in favor of it as “pressuring” undecided jurors.
{¶ 180} There is nothing in the record indicating that the jurors themselves felt pressured, and there are significant indications that they did not. The jury foreman’s note regarding the alternate expressing his feelings reveals the foreman’s view that no one was being swayed, and the final note sent out by the foreman reveals that the jurors did not feel pressured. The trial judge, who presided over this long and involved trial, made some inquiries and was satisfied that no undue pressure was asserted. The jury was polled after the verdicts of death were reached, and each juror verified that his or her vote was for recommending the death sentence.
{¶ 181} While it may have been preferable to question individually each juror and alternate in more detail at this point, the failure to do so was not error in these circumstances. The trial court’s focus at this time was on whether there was misconduct or improper influence on the jury as a whole. It is true that the alternate jurors in the jury room, like the jurors, played some role owing to their presence in the jury room in the overall inquiry into jury misconduct. However, there were no specific reasons for the court to inquire into whether the alternates, by their mere presence in the jury room, had contaminated the deliberations, and appellant’s complaints at the time were not directed at that question. Appellant’s fourteenth proposition of law approaches this entire situation in the same way that the trial judge did at the time the scenario actually unfolded. The lead opinion drastically departs from that scenario in evaluating this proposition of law.
{¶ 182} Finally, the alternates had been present at all previous stages of this trial and appellant raised no complaints on the record about their behavior until the series of events at the penalty-phase deliberations. Anyone who has been present at or participated in an aggravated murder trial involving death specifications can readily appreciate the stress that was present during this final stage of the proceedings, and we should not be too hasty to presume prejudice merely *166because emotions were running high. See State v. Hessler (2000), 90 Ohio St.3d 108, 120, 734 N.E.2d 1237 (heightened emotions and intense feelings are part and parcel of the jury-deliberation process).
Ill
Alternate Jurors’ Presence in Deliberations
{¶ 183} The lead opinion does not delve into the specifics of why the alternates were in the jury room, and thus does not explain the implications of former Crim.R. 24(F) and this court’s opinion in State v. Hutton (1990), 53 Ohio St.3d 36, 559 N.E.2d 432, on the issue it reverses. A consideration of former Crim.R. 24(F) and Hutton is essential to understand this case.
{¶ 184} As the lead opinion recognizes, former Crim.R. 24(F) required on its face that alternate jurors must be discharged when the jury retires. See State v. Murphy, 91 Ohio St.3d at 531, 747 N.E.2d 765, and State v. Jackson (2001), 92 Ohio St.3d 436, 438-439, 751 N.E.2d 946 (both of which found no plain error when alternate jurors sat in on deliberations and defendants failed to object). The lead opinion fails to note, however, that this rule was judicially modified as it applies to capital cases in State v. Hutton, 53 Ohio St.3d at 46-48, 559 N.E.2d 432, and paragraph three of the syllabus, to allow a trial judge to retain alternates after guilt-phase deliberations in case a regular juror becomes incapacitated before penalty-phase deliberations begin. See Murphy, 91 Ohio St.3d at 531, 747 N.E.2d 765 (citing Hutton, 53 Ohio St.3d at 46-48, 559 N.E.2d 432, and paragraph three of the syllabus).
{¶ 185} Crim.R. 24 has recently been amended, effective July 1, 2002, apparently to reflect the holding of Hutton. Crim.R. 24(F)(2) now reads:
{¶ 186} “Capital cases. The procedure designated in division (F)(1) of this rule shall be the same in capital cases, except that any alternate juror shall continue to serve if more than one deliberation is required. If an alternate juror replaces a regular juror after a guilty verdict, the court shall instruct the alternate juror that the juror is bound by that verdict. No alternate juror shall be substituted during any deliberation. Any alternate juror shall be discharged after the trial jury retires to consider the penalty.”
{¶ 187} According to the Staff Note to amended Crim.R. 24(F), dealing with alternate jurors, “The amendment effective July 1, 2002 divided division F of the previous rule into divisions (F)(1) and (F)(2). Division (F)(1) [Non-capital cases] contains the substance of previous division (F), plus the inclusion of an exception for capital cases. Division (F)(2) [Capital cases] was added to permit alternate jurors in capital murder cases to continue to sit as alternate jurors after a guilty verdict has been rendered. If an alternate juror replaces a regular juror for the *167penalty phase of the trial, the trial judge shall instruct the alternate juror that the alternate juror is bound by the guilty verdict.” (Brackets sic.)
A
State v. Hutton
{¶ 188} It is apparent that Hutton generated a degree of confusion in both trial and appellate courts over its judicial modification of former Crim.R. 24(F) in capital cases. The specific issue in this case as the lead opinion approaches it— the propriety of alternate jurors being present in the jury room during deliberations — -was a subject of much misunderstanding until this court’s recent decision in Murphy offered some clarification. See 91 Ohio St.3d at 532, 747 N.E.2d 765 (“nothing in Hutton authorizes alternates who have not replaced regular jurors to be present during deliberations”) (emphasis sic). It is impossible to grasp the extent of this misunderstanding without a detailed discussion of Hutton.
{¶ 189} A capital trial involves essentially four different definable stages: (1) guilt-phase presentation of evidence and arguments, (2) guilt-phase deliberations, (3) penalty-phase presentation of evidence and arguments, and (4) penalty-phase deliberations. Crim.R. 24(F), both before and after its recent amendment, authorizes alternate jurors to be present at the first stage. Former Crim.R. 24(F), since it provided simply that alternate jurors who do not replace regular jurors “shall be discharged after the jury retires to consider its verdict,” on its face required that alternate jurors would not be present at any of the final three stages. If an alternate juror replaced a regular juror before the jury retired to deliberate, that juror could be present at the final three stages, but it was as a regular juror, and no longer as an alternate.
{¶ 190} Recognizing that a capital case is different from other criminal cases, this court in Hutton held at paragraph three of the syllabus that former “Crim.R. 24(F) is not violated in a capital case where an alternate juror is substituted for another juror after the guilt phase verdict, but before deliberations begin in the penalty phase.” 53 Ohio St.3d 36, 559 N.E.2d 432. With this holding, this court in Hutton authorized trial court judges to retain alternates in capital cases past the time that the jury retires to consider the guilt-phase verdict. There is no mention in the Hutton opinion of whether these alternates would sit in on, ■without participating in, the guilt-phase deliberations. It is impossible to tell from the Hutton opinion whether the alternate who was retained in that case had been present at the guilt-phase deliberations, although as "will be discussed subsequently, it may be safe to presume that the alternate was not.
{¶ 191} To be precise, this court in Hutton was authorizing and upholding only the practice that occurred in the case before it, in which a juror was replaced with an alternate after the jury had found the defendant guilty and *168before the start of the penalty phase. Id. at 44-45, 559 N.E.2d 432. The extent of this court’s ruling in Hutton was only that alternates could be present at the penalty-phase presentation of evidence and arguments in a capital case, and if an alternate juror replaced a regular juror at that stage, then that alternate could be present at and participate in deliberations at the penalty phase, but as a regular juror and not as an alternate.
{¶ 192} An important question in Hutton was whether an alternate who is retained while the jury reaches a guilty verdict in the guilt phase can be sufficiently familiar with the case that he or she is able to competently replace a removed juror who has fully participated in all proceedings to that point. If the alternate has not participated in deliberations at the guilt phase, there is some fear that the alternate cannot be as fully informed and functioning a member of the jury as the continuing jurors. It is important to note at this point that there is a difference between not participating in deliberations and being absent from deliberations.
{¶ 193} Hutton did not specifically address the issue of alternate jurors sitting in on deliberations in either phase of a capital trial. However, a very close reading of Hutton reveals that this court’s opinion included an assumption that alternate jurors in bifurcated cases who are retained after deliberations in the first phase begin would not be sitting in on deliberations in either phase.
{¶ 194} First, the Hutton opinion discussed State v. Dodis (Minn.1982), 314 N.W.2d 233, a murder case that under Minnesota law was bifurcated into a guilt phase and a mental-illness phase because the defendant raised mental illness as a defense. As the Hutton court contemplated the reasons for and against fashioning a specific exception to Crim.R. 24(F) for capital cases, it cited Dodis in support of the idea that alternates could be retained between phases of a bifurcated trial. The Hutton court characterized Dodis as finding that “[t]he alternate’s absence from deliberations on guilt was ‘of no consequence’ to his ability to deliberate on mental illness.” 53 Ohio St.3d at 46, 559 N.E.2d 432, quoting Dodis, 314 N.W.2d at 241.
{¶ 195} Second, in its discussion of People v. Fields (1983), 35 Cal.3d 329, 197 Cal.Rptr. 803, 673 P.2d 680, the Hutton court again implied that the alternate juror in a capital case who was retained once the first stage ended would not have been present in guilt-phase deliberations. As support for not allowing an alternate to become a juror at the penalty phase, the Hutton court cited Fields, which reasoned that such a juror would be joining a group that had already deliberated after the guilt phase, in which the group had conducted discussions and reached conclusions. The Hutton court observed that this alternate “would be ‘ignorant of those discussions and conclusions.’ ” 53 Ohio St.3d at 46, 559 N.E.2d 432, quoting Fields at 351, 197 Cal.Rptr. 803, 673 P.2d 680. Obviously, if *169the alternate had sat in on guilt-phase deliberations, the alternate would not be “ignorant” of what went on during those deliberations.
{¶ 196} Despite the inferences in Hutton that seem clear to us now in hindsight, it is an indisputable fact that many trial court judges relied on Hutton as authorization for alternate jurors in capital cases to sit in on deliberations, both at the guilt phase and the penalty phase, and that this view of Hutton was taken by the trial court judge in the instant case. See, e.g., State v. Jackson, 92 Ohio St.3d at 438-440, 751 N.E.2d 946 (practice was not plain error); State v. Murphy, 91 Ohio St.3d at 531-533, 747 N.E.2d 765 (same); State v. Hessler, 90 Ohio St.3d at 123, 734 N.E.2d 1237 (alternate sat in at deliberations but no objection at trial and defendant did not raise practice as error on appeal); State v. Henness (1997), 79 Ohio St.3d 53, 72, 679 N.E.2d 686 (apparently no objection at trial; proposition of law challenging practice summarily rejected, id. at 56, 679 N.E.2d 686); State v. Voorhies (June 14, 1995), Guernsey App. No. 94-CA-8, 1995 WL 495820 (finding, based on Hutton, Crim.R. 24[F] not applicable to capital murder case, so no error when trial judge allowed alternate jurors to be present at guilt-phase deliberations in capital case in which jury did not recommend death penalty). The fact that this was a common practice perhaps was why the defense attorney in the instant case did not object to the presence of alternates during guilt-phase deliberations. In addition, defense attorneys in cases such as Jackson and Murphy did not object to the presence of alternates in deliberations at either phase.
{¶ 197} It was not until 2001 in Murphy that this court definitively found that the practice was error. Perhaps judges presiding over jury trials in the time between Hutton and Murphy reasoned that if the alternate was not allowed to sit in on guilt-phase deliberations, it would be too difficult for the alternate to fully participate at the penalty phase if called to replace a juror. Although such an approach would be inconsistent with the Hutton court’s discussions of Dodis and Fields detailed above, there is other language in Hutton that could be interpreted to support that approach. Fob example, Hutton stated that “the Fields court ‘recognize[d] that unforeseen circumstances may require substitution of a juror at the penalty phase of a capital trial, even though the alternate did not take part in the guilt phase deliberations.’ ” 53 Ohio St.3d at 47, 559 N.E.2d 432, quoting Fields, 35 Cal.3d at 351, 197 Cal.Rptr. 803, 673 P.2d 680, fn. 9, citing People v. Green (1971), 15 Cal.App.3d 524, 528, 93 Cal-Rptr. 84. If a trial judge failed to appreciate the difference between “not taking part” in deliberations and “not being present” at deliberations, this passage, read in isolation, could support a view that alternates could be present at deliberations without taking part in them.
*170{¶ 198} Or perhaps the scope of Hutton's holding on this issue was misunderstood. In Voorhies, the court of appeals stated that in Hutton, this court set forth “reasons why it would not be appropriate to apply Crim.R. 24(F) to a capital murder case,” and proceeded to find that former Crim.R. 24(F) did not apply to capital cases, by virtue of Hutton. That interpretation failed to appreciate that Hutton merely established a narrow exception to Crim.R. 24(F), and certainly not a carte blanche authorization to ignore the rule totally in capital cases.
{¶ 199} The court of appeals’ decision in Voorhies, along with the trial scenarios in cases such as Murphy and Jackson, illustrate that it was a common practice to allow alternate jurors to sit in on jury deliberations in capital cases at the time the instant trial took place. Thus, the instant trial is clearly distinguishable from trials that have occurred since Murphy was decided. The lead opinion, by not placing the trial judge’s decisions in proper perspective, portrays the practice as more extreme and unjustified than it actually was at that time. The lead opinion’s presumption of prejudice is similarly distorted because much of the lead opinion’s apparent insight into this issue is based on this court’s observations in Murphy and Jackson, both of which were decided long after the trial in the instant case took place.
{¶ 200} Current Crim.R. 24(F)(2), as amended, makes clear that alternate jurors in a capital case are to be discharged when the jury retires to consider its verdict in the penalty phase. I believe that this part of Crim.R. 24(F)(2) is not inconsistent with the rule exception announced in Hutton. Therefore, since the proper view of alternates’ positions in capital cases has not changed, the trial judge in this case erred in allowing alternates to sit in on jury deliberations.
{¶ 201} However, one of the most compelling rationales behind Hutton was that, if no exception were made to former Crim.R. 24(F) for capital cases, discharging alternates after the guilt phase “would completely foreclose the state from obtaining the death penalty” if a regular juror became unable to serve in the penalty phase. See 53 Ohio St.3d at 47, 559 N.E.2d 432. But, see, R.C. 2929.06(B), as amended effective September 21, 1996. While Hutton, and now amended Crim.R. 24(F)(2), provide a procedure for replacing a juror with an alternate before penalty-phase deliberations, the problem remains that, if a juror becomes unable to serve after penalty-phase deliberations begin, the jury must be dismissed. Hutton of course did not involve this scenario, and so that case did not consider it.
{¶ 202} As will be discussed below, the Federal Rules of Criminal Procedure now address the replacement of a juror with an alternate during deliberations (although there is no special federal rule for bifurcated cases, see United States v. Johnson [C.A.7, 2000], 223 F.3d 665, 670; United States v. Webster [C.A.5, 1998], 162 F.3d 308, 345-347). The approach of the Federal Rules on this point is worth *171considering, especially in bifurcated cases. There are significant advantages to retaining an alternate juror during deliberations at both phases of a capital trial, and to being able to substitute that alternate during deliberations if a regular juror becomes unable to serve, just as there are advantages to allowing substitution of an alternate during deliberations in a regular trial. Crim.R. 24(F)(2), which now provides that “[n]o alternate juror shall be substituted during any deliberation,” specifically forecloses the possibility of substitution of an alternate during deliberations in a capital case.
{¶ 203} Amended Crim.R. 24(F)(2) does not specify where the alternates should be during the jury’s deliberations in the guilt phase. In light of the obvious confusion that Hutton has generated on this issue, it may have been preferable for the amended rule to clearly state that the alternates should not sit in on those deliberations, although they are not to be dismissed at that point. The alternates should be retained in a room separate from the jury and instructed not to discuss the case among themselves. But, even though the amended rule does not specifically say so, it is apparent that alternate jurors should not sit in on deliberations. This is a natural consequence of the exception to former Crim.R. 24(F) announced in Hutton and clarified in Murphy (as discussed above) and also fully consistent with the spirit of the recent amendment resulting in Crim.R. 24(F)(2).
B
Alternate Jurors and Federal Procedural Rules
{¶ 204} Both the Federal Rules of Civil Procedure and the Federal Rules of Criminal Procedure have been modified to address problems sometimes presented by the use of alternate jurors. In civil jury trials in the federal system, the provisions for alternate jurors in former Fed.R.Civ.P. 47(b) were discarded in 1991. Fed.R.Civ.P. 48 provides:
{¶ 205} “The court shall seat a jury of not fewer than six and not more than twelve members and all jurors shall participate in the verdict unless excused from service by the court pursuant to Rule 47(c). Unless the parties otherwise stipulate, (1) the verdict shall be unanimous and (2) no verdict shall be taken from a jury reduced in size to fewer than six members.” Ohio’s Civil Rules retain the concept of alternate jurors in Civ.R. 47(C): “An alternate juror who does not replace a regular juror shall be discharged after the jury retires to consider its verdict.” Obviously, Fed.R.Civ.P. 48 gives a federal trial judge much more flexibility in seating a jury and proceeding through to a final verdict in a civil case than our Civil Rules give an Ohio trial judge.
{¶ 206} Two provisions in the Federal Rules of Criminal Procedure are relevant to this discussion. Fed.R.Crim.P. 23(b) allows a jury of fewer than 12 *172members to reach a decision if a trial judge dismisses a juror for just cause after deliberations have begun. Fed.R.Crim.P. 23(b) provides:
{¶ 207} “Jury of Less Than Twelve. Juries shall be of 12 but at any time before verdict the parties may stipulate in writing with the approval of the court that the jury shall consist of any number less than 12 or that a valid verdict may be returned by a jury of less than twelve should the court find it necessary to excuse one or more jurors for any just cause after trial commences. Even absent such stipulation, if the court finds it necessary to excuse a juror for just cause after the jury has retired to consider its verdict, in the discretion of the court a valid verdict may be returned by the remaining 11 jurors.”
{¶ 208} For a collection of cases applying Fed.R.Crim.P. 23(b), see Annotation, Constitutionality and Application of Federal Rule of Criminal Procedure 23(b), Allowing 11-Person Jury to Return Verdict Absent Stipulation to that Effect by Parties When One Juror Has Been Excused After Start of Deliberations (1992), 107 A.L.R.Fed. 508. See, also, United States v. Gambino (C.A.3, 1986), 788 F.2d 938, 946-949, discussing the specifics of Fed.R.Crim.P. 23(b).
{¶ 209} In addition, effective in 1999, Fed.R.Crim.P. 24(c) was amended to specify a procedure whereby a trial judge can replace a juror with an alternate after deliberations have begun. Fed.R.Crim.P. 24(c)(3) provides:
{¶ 210} “Retention of Alternate Jurors. When the jury retires to consider the verdict, the court in its discretion may retain the alternate jurors during deliberations. If the court decides to retain the alternate jurors, it shall ensure that they do not discuss the case with any other person unless and until they replace a regular juror during deliberations. If an alternate replaces a juror after deliberations have begun, the court shall instruct the jury to begin its deliberations anew.”
{¶ 211} A recent federal court of appeals decision serves to illustrate some features of the Federal Criminal Rules mentioned above. In United States v. Register (C.A.11, 1999), 182 F.3d 820, a criminal case involving federal drug trafficking and weapons charges, the trial judge did not dismiss the alternate jurors at the start of deliberations, as required by former Fed.R.Crim.P. 24(c) (and so violated the rule in effect at the time of trial), but instead ordered the alternates to wait in a separate room while the jury deliberated, instructing the alternates not to discuss the case among themselves. After deliberations had started, the trial judge dismissed one of the regular jurors and substituted an alternate, ordering the jury to begin its deliberations again. The jury then found the defendants guilty of some of the offenses they were charged on. The court of appeals applied a harmless-error test and affirmed the convictions because it found no prejudice to the defendants. Id. at 842-843.
*173{¶ 212} The Register court found that the trial did not violate Fed.R.Crim.P. 23(b), reasoning that that rule, by allowing for a jury of fewer than 12 to render a verdict, does not specifically foreclose the option of seating alternates during deliberations if the trial judge so decides. See id. at 843, fn. 34. The Register court also recognized that the proposed amendment to Fed.R.Crim.P. 24(c)(3), which had not yet been adopted at the time of trial, would have allowed a trial judge to employ exactly the procedure used by the trial judge in the case before it. Id. at 843, fn. 36. Thus, under the Federal Criminal Rules, the trial judge has the option of proceeding under Fed.R.Crim.P. 23(b) or 24(c) if a juror becomes unable to serve during deliberations. The flexibility afforded by these rules appears to be a worthwhile innovation.
{¶ 213} The federal system’s modification of its rules, both civil and criminal, attempts to address problems presented by complicated and protracted jury trials. Whether civil or criminal, a lengthy jury trial presents special challenges that require more flexibility. The federal rules mentioned above, at least as they relate to alternate jurors, address these special challenges, and Ohio should consider making similar revisions to our rules that implicate alternates, and to any related statutes, such as R.C. 2945.29.
{¶ 214} In State ex rel. Columbus v. Boyland (1979), 58 Ohio St.2d 490, 492-493, 12 O.O.3d 401, 391 N.E.2d 324, this court found that the Ohio Constitution does not require that a jury in a criminal case be composed of 12 persons. That decision may indicate that our Crim.R. 23 could be amended in line with the federal criminal rules to allow juries of fewer than 12 to deliver verdicts in some situations. Also, since our rules have no provision allowing for replacement of jurors during deliberations (a practice now specifically forbidden in capital cases by Crim.R. 24[F][2]), a long hard look at Fed.R.Crim.P. 24(c)(3) may be in Order. At the same time, our state’s recent amendment of Crim.R. 24(F), recognizing that capital cases merit specialized rules in this area, is noteworthy. Further refinements of procedures specific to capital cases would not be incompatible with the adoption of some of the federal innovations discussed above relating to alternate jurors for all criminal cases.
IV
Is the Death Penalty an Option on Remand?
{¶ 215} In vacating appellant’s death sentence and remanding this cause to the trial court for resentencing, the lead opinion makes no mention of what should happen on remand, and therefore does not discuss whether appellant remains eligible to receive a death sentence. Specifically, the lead opinion does not address whether R.C. 2929.06(B) applies to this case. There are two possible views to take of the lead opinion’s failure to cite that statute. One is that the lead *174opinion believes that it does not apply to appellant’s case. The other is that, even though the lead opinion does not cite the statute, it does apply on remand. It is apparently up to the trial judge to determine which of these two views is the correct one.
{¶ 216} The General Assembly enacted R.C. 2929.06(B), effective in 1996, to require a trial court to seat a new penalty-phase-only jury in order to resentence an offender when an appellate court has vacated the original death penalty based on penalty-phase error in a jury trial death-penalty case. See 1996 Sub.S.B. No. 258, 146 Ohio Laws, Part VI, 10539, 10548. That statute specifically lists death as one of the options that is now available at resentencing. R.C. 2929.06(B) overruled this court’s holding in State v. Penix (1987), 32 Ohio St.3d 369, 513 N.E.2d 744, syllabus, that death is not an option for resentencing in this situation, and answers the criticisms raised in Justice Holmes’s dissent in Penix that a defendant should face a new sentencing-phase-only jury in that situation, in which the state may seek the death penalty. See 32 Ohio St.3d at 375-379, 513 N.E.2d 744 (Holmes, J., dissenting).
{¶ 217} It is apparent that, for the same reasons cited in Justice Holmes’s dissent in Penix, Section (A) of R.C. 2929.06 does not apply to the case sub judice. See 32 Ohio St.3d at 375-376, 513 N.E.2d 744 (Holmes, J., dissenting). Since Section (A) does not apply, Section (B) does on its face and would seem to authorize the state to seek a death sentence on remand.
{¶ 218} The offenses appellant was convicted of were committed in 1994. On remand, an argument will surely be made that applying R.C. 2929.06(B), enacted two years after those offenses, would violate the constitutional prohibitions against ex post facto laws and retroactive laws. No cases of this court interpret R.C. 2929.06(B), even though it was first effective six years ago. Its reach is limited to a small number of cases. This case is one that seems to implicate all the conditions specified within the statute for its application. However, if it should violate prohibitions against ex post facto laws or against retroactive laws, R.C. 2929.06(B) would not apply.
{¶ 219} While a majority of this court has never addressed R.C. 2929.06(B), that statute has been cited in a dissenting opinion to support the apparent view that the statute can be applied to a situation such as this. In State v. Twyford (2002), 94 Ohio St.3d 340, 763 N.E.2d 122, the offenses occurred in 1992, the jury recommended death, and the trial court imposed the death sentence. A majority of this court affirmed the death penalty. One justice authored a separate opinion, joined by another justice, expressing the view that the guilty verdict should be affirmed but the death penalty should be reversed. Id. at 368-372, 763 N.E.2d 122 (Lundberg Stratton, J., concurring in part and dissenting in part). The authoring justice reasoned that defense counsel’s ineffectiveness in the guilt *175phase in soliciting inadmissible, highly inflammatory testimony about the defendant had a carryover effect on the jury in the penalty phase, thereby requiring reversal of the death sentence. Id. at 372, 763 N.E.2d 122. The opinion concluded with the statement that, instead of affirming the sentence of death, this court should “remand the cause for rehearing pursuant to R.C. 2929.06(B), which provides for the trial court to impanel a new jury for a new mitigation and sentencing hearing in which this evidence would be excluded.” Id.
{¶ 220} Even though R.C. 2929.06(B) provides the options other than death that are available in this situation, i.e., life imprisonment without parole, life imprisonment with parole eligibility after serving twenty-five full years, and life imprisonment with parole eligibility after serving thirty full years, only those options available in 1994 may be imposed in this case. See State v. Madrigal (2000), 87 Ohio St.3d 378, 399, 721 N.E.2d 52; State v. Raglin (1998), 83 Ohio St.3d 253, 259-260, 699 N.E.2d 482, both considering the application of R.C. 2929.03, which was amended effective July 1, 1996. See 146 Ohio Laws, Part IV, 7136, 7454-7456, and 146 Ohio Laws, Part VI, 10752, 10926-10927. Before that time, R.C. 2929.03 provided that the penalties available in a capital case were death, life with parole eligibility after serving thirty years, and life with parole eligibility after serving twenty years. 146 Ohio Laws, Part IV, 7815, 7816. Thus, life without parole is not an option on remand in this case.
{¶ 221} Since I do not agree with the determination to reverse appellant’s death sentence, it is my view that no remand for resentencing is necessary, and that R.C. 2929.06(B) is not applicable. I simply point out that, given the way this court resolves this case, the applicability of that statute is a potentially troubling issue and should be addressed.
V
Conclusion
{¶ 222} For all the foregoing reasons, appellant’s sentence of death should not be reversed. A presumption of prejudice is inappropriate in these circumstances. In the absence of any demonstration of actual prejudice, I would find no reversible error, would therefore affirm the judgment of the court of appeals on the alternate-juror question, and would proceed to decide the issues found moot by the lead opinion. Since this court does not take that course of action, I dissent.
F.E. Sweeney and Lundberg Stratton, JJ., concur in the foregoing opinion.
APPENDIX
{¶ 223} Proposition of Law No. I: Evidence obtained in an illegal search are fruits [sic] of the poisonous tree under the Fourth Amendment and Article [I], *176Section 14 of the Ohio Constitution. The initial search of Tony Gross’ trailer was in violation of the Constitutions. The fruits of this search should have been suppressed.
{¶ 224} Proposition of Law No. II: A warrant issued on the basis of information obtained in an illegal warrantless search of a home violates the Fourth Amendment and Article I, Section 14 of the Ohio Constitution. Samples of blood, hair and fingernail scrapings taken from Tony Gross pursuant to such a warrant must be suppressed.
{¶ 225} Proposition of Law No. Ill: The photographic identification and follow up procedures used with several witnesses were so suggestive that they led to unreliable pre-trial and in-court identification that subverted the fairness of the fact finding process at both the trial and penalty phases.
{¶ 226} Proposition of Law No. IV: Show-up identification procedures used with witnesses Karen Wright and Shawn Jones were unnecessarily suggestive and conducive to irreparable mistaken identification. Neither of their in-court identifications of Tony Gross nor testimony concerning the prior identifications should have been admitted at trial.
{¶ 227} Proposition of Law No. V: Gross was entitled to a fair and reliable determination of guilt or innocence as well as sentence by an impartial jury under Article I, Sections 2, 9, 10 and 16 and the Fifth, Sixth, Eighth and Fourteenth Amendments. The jury selection process here denied Gross such a fair and impartial jury.
{¶ 228} Proposition of Law No. VI: Introduction of “other acts” evidence, except under limited, clearly defined circumstances denies a criminal defendant of a fair trial and due process. The introduction of “other acts” evidence that Tony Gross dealt in “crack” caused undue prejudice, unfairly denied him due process, a fair trial, and a fair and reliable sentencing hearing in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments, as well as Article I, Sections 2, 9,10 and 16 of the Ohio Constitution.
{¶ 229} Proposition of Law No. VII: The evidentiary errors that pervaded the trial deprived to [sic] Gross of due process, a fair trial, and a fair and reliable sentencing determination.
{¶ 230} Proposition of Law No. VIII: The jury must be given clear and legally correct jury instructions to [e]nsure a fair and reliable determination of guilt or innocence at the trial phase of a capital case.
{¶ 231} Proposition of Law No. IX: Duplicative aggravating circumstances improperly tipped the weighing process, in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments, as well as Article I, Sections 2, 9, 10 and 16 of the Ohio Constitution.
*177{¶ 232} Proposition of Law No. X: Jury instructions at the penalty phase must convey to the jury adequate information to adequately guide the jury’s exercise of its discretion. The instructions here failed to provide the mandated guidance in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments as well as Article I, Sections 2, 9,10 and 16 of the Ohio Constitution.
{¶ 233} Proposition of Law No. XI: Tony Gross was convicted and sentenced to death in a trial conducted in an emotional atmosphere based on victim impact evidence and argument in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments as well as Article [I], Sections 2, 9, 10 and 16 of the Ohio Constitution.
{¶ 234} Proposition of Law No. XII: Due process permits convictions only upon proof beyond a reasonable doubt. The state failed to introduce sufficient evidence upon which to premise a conviction for aggravated murder, as well as the other charged crimes. Tony Gross’ convictions and sentence of death deprived him of due process as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments, as well as Article I, Sections 2, 9, 10 and 15 [sic] of the Ohio Constitution.
{¶ 235} Proposition of Law No. XIII: A defendant in a capital prosecution is guaranteed the effective assistance of counsel by the Fifth, Sixth, Eighth and Fourteenth Amendments and Article I, Sections 2, 9, 10 and 16 of the Ohio Constitution. The performance of trial counsel fell far below the prevailing professional norms, and was therefore unreasonable, denying Gross the effective assistance of counsel.
{¶ 236} Proposition of Law No. XIV: A capital defendant is entitled to a fair and reliable determination of his guilt and sentence by a jury that is properly instructed and that follows the court’s instructions. Where the jury ignores the court’s admonitions and discusses the case outside of the jury room and where jurors intimidate other jurors there is a denial of due process and a fair trial in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments, as well as Article I, Sections 2, 9,10 and 16 of the Ohio Constitution.
{¶ 237} Proposition of Law No. XV: The convictions and sentence of death imposed upon Tony Gross violate the Fifth, Sixth, Eighth and Fourteenth Amendments as well as Article I, Sections 2, 9,10 and 16 of the Ohio Constitution because of the cumulative effect of the errors throughout both phases of the trial, the pretrial preparation and litigation, the motion for a new trial and the appellate process.
{¶ 238} Proposition of Law No. XVI: The death sentence is inappropriate in this case.
D. Michael Haddox, Muskingum County Prosecuting Attorney, for appellee. David C. Stebbins and S. Adele Shank, for appellant.{¶ 239} Proposition of Law No. XVII: Where proportionality review is a necessary component in the appellate review of a capital case, due process and equal protection are denied when the state courts’ review is limited.
{¶ 240} Proposition of Law No. XVIII: The Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Article [I], Sections 2, 9, 10 and 16 of the Ohio Constitution establish the requirements for a valid death penalty scheme. Ohio’s statutory provisions governing the imposition of the death penalty do not meet the prescribed constitutional requirements and are unconstitutional, both on their face and as applied to Tony Gross.